Family Law Blog

How far back in the past can child support go?

Parent receiving large retroactive child support family court order

Ontario Family Courts can and do order back child support. It is called retroactive support. Judges order retroactive child support all the time.  They often order child support even when the paying parent does not think he or she can afford it.


Under s. 25 of the Child Support Guidelines, the separated parents of a child are supposed to exchange income information every year and adjust child support based on what is appropriate. 


In a case called D.B.S., the Supreme Court looked at how far retroactive support can go. Here is that decision.  Generally child support can be awarded as far back as when the person who should have been receiving support first raised this issue.   This means that you have to be able to prove that you asked for support, or a change in support.  So, you need to ask for support, or a change in support, or at least financial disclosure, in writing so that you can prove when you asked.  If you cannot prove you asked for child support, the court will award support from the date you started the court proceeding seeking it.


Parent happily voluntarily paying child support

In addition, since Child Support is the right of the child, and parents should know they have to pay, then the child support payer has an obligation to pay child support pursuant to the Child Support Guidelines regardless of whether he or she was asked to pay support.  So, the Supreme Court said retroactive child support can be ordered for a period before the support recipient asked for it.  The court felt that if a recipient did not ask for support, or a change in support, for some time, then the support payer may have thought that there was no interest in pursing child support.  A hardship would result if too much retroactive support was awarded.  So, the Supreme Court said a court can award retroactive support for three years prior to the request for child support.  The court may not want to do so if the person who should have gotten support gave the impression that he or she did not want to get that additional support.  


But, absent special circumstances, the rule is retroactive child support can be ordered back to three years before the child support recipient can prove that he or she asked for child support or that child support should be changed.


Child support can be ordered even father back where the support payer has hid how much she or he is really making.  If the support payer actively deceived the support recipient into believing that it would not be worthwhile to pursue child support or a change in child support, then the court can order retroactive support back to the start of that deception - no matter how far back that was.  Sometimes, refusing to provide financial disclosure is deception, when it would have shown a higher income.  At other times, the payer just refusing to reveal that his or her income has gone up significantly is enough to justify going back beyond the three years.  It depends on whether the judge believed the payer intended to deceive the recipient. 


For more on child support, you should watch this video,  listen to this podcast, or read this page.


Also, if the support payer earns income from sources other than a salary (usually self-employment or investments), calculating income can be much more complicated and child support is often higher than the parents expect.  The obligation to provide disclosure is much larger for those parents because many more factors have to be considered in calculating income for child support purposes.  For more on that, listen to this episode of the Ontario Family Law Podcast.  


Don’t forget that your ex may be on the hook for more than just table support.  All separated parents of children should be paying part of certain big expenses on top of base support.  Listen to this additional podcast on child support for more about that.


Judges view child support as very important. They are not sympathetic to parents who do not pay the appropriate amount of child support.  Judges will say that child support should take priority over all other expenses. 


Click here to see a good decision from Ontario Family Court where the judge applied the ideas above and ordered over $36,000.00 in retroactive support. It shows how a parent can get into trouble by playing games about child support and can get stuck owing a large amount of support.  A parent “trying to beat the system” to avoid child support often results in that parent paying a lot more child support.  (This case also shows how John Schuman gets results for his clients.)


If what you are seeking is a change in support, then you should watch this video


Child support can be complicated, and it can involve a lot of money. So your best bet is to meet with a good family law lawyer who can tell you how child support law applies to you and your particular circumstances. (You may also get a tax deduction for your lawyers fees in relation to getting child support.)  To contact Certified Specialist in Family Law and top Toronto Lawyer for child support, John Schuman, please call the number at the top of this page, or use the contact form at the bottom of the page.

Guide to the Basic of Ontario Family Law (Book)


You can also find out a lot more about child support, and most other family law issues, by picking up a copy of this $20 easy-to-understand book on Ontario Family Law.  It is an exceptional reference for people who need to know about divorce, separation, child support, spousal support, child custody and access, property division, restraining orders, and many other family law issues.  It also has tips to keep out of trouble and do succeed with your Family Law matter.

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Guide to the Basics of Ontario Family Law Available on Kindle

Thousands of people turn to this webpage every month to get help with their Family Law problem. If you know someone else who could be helped by reading his page, please feel free to share it with them, or share it on your social network using the buttons at the bottom of the page.  You can also use the form below to comment on this page.

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Can I Get Divorced If My Spouse Has Left the Province of Ontario?

Divorce Court GavelIn Canada, section 3(1) of the Divorce Act says that a Court can only grant a divorce if one of the spouses had lived in the Court's jurisdiction for one year.  Since you husband has been living in the other jurisdiction for less than a year, he cannot ask the court in the other jurisdiction to handle the divorce yet.  However, you are still free to ask the Court for the Regional Municipality or County where you live to deal with the divorce, which is obviously much more convenient for you.   You do have to arrange to serve your husband with the divorce papers, but once you do that, he has only 30 days to respond.  If all you want is a simple divorce, then he probably will not bother.  


If you do not know where your husband is living, check out this page for what you should do.


If you have kids and they are now living with your husband in another province, the part of the case that deals with them may be moved to the province where they are living.  Orders regarding children and parenting are supposed to be made by the court where the children reside. 


To find out what steps you should take after separating (including all the things you need to consider), watch this video and read this page.


 If you want more than just a divorce, and you want to deal with things like child custody and access, child support, spousal support and property division, then you can get more information about pursuing those claims by getting a copy of this $20 easy-to-understand book on Ontario Family Law.  

Guide to the Basic of Ontario Family Law (Book)


However, nothing is better than meeting with a good family lawyer to discuss the specifics of your situation and learn how the law applies to you.  Little things can make a big difference in family law and a good family lawyer will make sure things work out okay for you. To meet with John Schuman, a top GTA divorce lawyer and a Certified Specialist in Family Law, call the phone number at the top of this page, or fill out the form below.  You can also use the same form to comment on this page. 

Guide to the Basics of Ontario Family Law Available on Kindle


Can a Common-Law Spouse Kick His Long Term Common-Law Partner Out of the Home Because He Owns It?

Home owned by one common law partnerLiving common law is very different from being married, and one important difference is that common law couples do not have a matrimonial home.  Married couples cannot kick each other out of the home (or homes) in which they live.  (See this page or watch this video for more on matrimonial homes).


Aside from the ability of common-law couples to get Family Law Restraining Orders against each other (see the criteria for restraining orders on this page), they do not have any additional rights than other “room-mates”, “co-tenants” or “boarders.”  In Ontario, being common law does not give partners rights to each other’s property.  Even the restraining order may not permit the non-owner to kick out the owning spouse.  The restraining order does not block the common-law partner who owns the house from making an application to the Landlord and Tenant Board to have the non-owning partner removed.  A judge may not grant a restraining order against a common-law partner to keep that partner out of his or her own property.


However, if one common-law spouse does kick out the other, the "kicked-out" spouse should be in a position to secure alternative accommodations.  If, after a long term relationship in which the parties lived together, a common-law spouse is kicking out the other and cutting off access to money that the kicked-out partner needs, a court will be quick to make an award for spousal support, and a the Judge may feel inclined to make that a large award to ensure that lifestyle does not change for the kicked-out partner.  To learn about spousal support, and how it may apply in your case, watch this video  or listen to this podcast.  However, spousal support can be a tricky issue, so it is best to talk about your case with a good family law lawyer.


A non-owner common-law partner may also be able to claim to be a part owner of the home after 21 years.  If a court found that that the non-titled partner is a part owner, that partner could also get an order permitting him or her to stay in the house, at least until it is sold.  But, that is a very complex, and often difficult, case to make.  So you really have to speak to a lawyer about it. 


This is certainly a difficult situation.  There may be other things you could do, which you can only find out by discussing over your situation in detail with a good family lawyer.   In all cases of domestic violence, it is always get the help of a lawyer to level the playing field and make sure no makes a bad decision because of threats or intimidation.


There is a lot more about common-law relationships, including a video about the rights of common-law partners, on this page.  

Guide to the Basics of Ontario Family Law


To learn a lot more about common-law relationships, property rights, restraining orders, child support and spousal support, as well as most other family law issues, and to get a description of all the options available on the breakdown of a relationship, get a copy of this $20, easy-to-understand book on the basics of Ontario Family Law  

Guide to the Basics of Ontario Family Law Available on Kindle


However, to make sure your rights as a common-law spouse are protected, you really should speak to a top family law lawyer.  John Schuman is a Certified Specialist in Family Law practicing in Toronto and throughout the GTA and Ontario.  You can reach him using the phone number at the top of the page, or the contact form below.  You can also use the contact form to comment on this post.


Thousands of people use this website every month to help them with their family law needs. If you have found this page helpful, feel free to share it on your social network using the buttons at the bottom of this page.  There is lots of information about family law issues on this website (although not as much as in the book or you could get from meeting with John.  Use the links throughout, or the search box on the right, to find out more about the topics that interest you.

Do Common-Law Spouses Share Each Other’s Debt

credit cards - debts that spouses could share

In Ontario, there is no property division between common law couples.  That means that, as a result of their relationship, they do not share in the value of each other assets or their debts.  Your common-law partner's debts are hers, and yours are yours.  You can share in each other's assets and debts only if you make them joint, either explicitly or by treating the assets as joint assets over a long period of time.  To understand more about that, check on this webpage


Living common-law in Ontario is very different from being married.  There is a strict definition of what being common-law means, which may or may not even apply in your situation.  If you are common law, the main consequence is entitlement to spousal support. To better understand what it means to live in a common-law relationship, read this page or watch this video.    


You might also want to watch this video on common family law mistakes that people make and how to avoid them.   Although, none of that will be as good as getting a consultation with a good family law lawyer who can explain how the law applies to your specific circumstances.  A Certified Specialist in Family Law, is a good place to start, as the Law Society of Upper Canada has recognized that person as a top family law / divorce lawyer.  You can contact John Schuman, using the phone number at the top of this page, or the contact form below.  You an also use the contact form to comment on this page. 


Guide to the Basics of Ontario Family Law

You may also want to get a copy of this $20 easy-to-understand book about Ontario Family Law, because it explains the basics of all that applies to common law couples and also explains court and the other options to resolving problems with a common law relationship ends. 


If you found this page helpful, feel free to share it on your social network using the buttons at the bottom of this page.

Guide to the Basics of Ontario Family Law Available on Kindle


Can parents force a 16-year-old teenager to undergo treatment for depression or other medical conditions?


Teenage boy not wanting treatment for depression

The short answer to this is No.  Unless you are deemed incompetent to make your own decisions, the Health Care Consent Act, 1996 says you make your own decisions regarding health care.  In fact, section 4 of that act says you are presumed to have capacity (regardless of your age) and section 10 says that a health care practitioner cannot administer treatment unless either you consent, or the practitioner has reason to believe that you do not have the mental competence to understand the treatment and its risks and benefits.  (Here is the law that says that.)


If you are at risk to harm yourself or others, then the Mental Health Act does provide a way for you to be hospitalized and medicated, whether you agree or not - particularly if your mental health impedes your ability to understand the situation.


You may want also want to read this article and this article that both talk about the right of children and teenagers to direct their own medical treatment.   It is a right the many health care practitioners, who often treat children, take very seriously. 


All of that said, you should have a serious discussion with your therapist and doctor about the benefits (and risks) of medication.  There are several good medications for treating depression that can help make the pain go away and that may not have side effects that you would worry about.  It is, however, your right to be able to make an informed decision as long as your are capable of doing so.


John Schuman, and the other human rights lawyers at his firm, have a lot of experience with children’s rights cases, including cases about the ability of children, teenagers, and other people to decide whether they receive treatment or not.  Those are called “capacity cases” and the process can be a little different for children then for adults because a child’s parents or caregivers, or a  children’s aid society can also use the provisions of the Child and Family Services Act, in addition to the provisions of the Mental Health Act, to get a court order requiring a child under the age of 16 to receive treatment.


If this sounds like a situation that applies to you then you may want to contact a good lawyer to assist you and fight for your rights.  You can call the number at the top of this page, or use the form below, to contact John Schuman and the other lawyers at his firm that assist people (adults and children) in these types of cases.


My daughter is going to university, we have a large RESP, do I still have to pay child support?

Paying for university or college tuition

It sounds like you have a good case to change the way support is paid.  Child support is much more flexible after age 18. Available funds, such an Registered Education Savings Plan (RESP), should be used to mer your daughter’s needs first.  Parents only contribute over and above this savings and what the child can afford, in an amount that is affordable for the parents.


When it comes to university and college expenses, parents contribute to those expenses, above what the child could reasonably contribute, in portion to their incomes with some consideration as to what is affordable.  For more on these types of expenses, you may want to listen to this podcast.  RESPs can significantly affect what each parent must pay while a child is in post-secondary education. 


Generally speaking, parents can use an RESP to cover their portion of a child's post-secondary education expenses.  This means that if one parent put all the money into the RESP, what comes out of the RESP will be considered that parent's contribution to the post-secondary education expenses.  There is some benefit to doing that after separation as the parent who uses the RESP will also get to use the government credits and the investment's growth as part of his or her contribution, while the other parent has to pay using all of their own money.  Where both parties contributed, but in different amounts, the money used out of the RESP is often allocated to each parent's contribution in proportion to what each parent contributed.  Where both parents contributed equally, then the RESP is considered an equal contribution from each parent. 


The child also has an obligation to contribute to his or her own educational expenses by applying for scholarships and bursaries that are available and by working if there is not enough money to cover school expenses, although that does not sound like it applies in your case. 


Paying child support and university or college tuition with an Registered Education Savings Plan

Also, you should note that when you are contributing to a child's post secondary education expenses (either through your RESP contributions or directly), there may be a change to the base child support where the child is going away to school.  Part of the expenses that the parents will be sharing are for things like residence, meal plans and other living expenses that would usually be covered by base support.  So, it is common for base or table child support to be reduced so that one parent does not pay for the same expenses twice. 


It may also be the case that spousal support would be changed as well.  See this page to learn about that


If you want some information about how to change a support order, watch this video.  


Guide to the Basics of Ontario Family Law

You can also learn a lot more about these child support issues, and other family law matters, by reading this $20 easy-to-understand book on Ontario Family Law.  


Since these child support for children in college or university cases depend a lot on the particular facts, you should probably speak to a good family law / divorce lawyer to find out how the law applies to your specific situation and determine your best options.  You can contact Certified Specialist in Family Law,  Toronto Divorce Lawyer, John Schuman, by either calling the number at the top of this page or using the form below.

Guide to the Basics of Ontario Family Law Available on KindleiBookstore_140x70


If you have found this page helpful, please share it on your social network using the buttons at the bottom of the page.  Then all of your friends can learn about how RESPs affect child support as well and either make the right plans for their children, or make sure they are paying the right amount of child support now. 

Comments:

John, thank you so much for an informative response. And thank you for sharing. Also, your book sounds incredibly effective for those who are or will be going through divorce or separation. Although your book is intended for those in Ontario I think it may provide good points to think about out here in Alberta. Cheers

- Marie T. DeLauretis (Certified Financial Planner & Financial Divorce Specialist - DeLauretis Wealth Management Inc.)


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© John P. Schuman 2014