This post is presented by J.Donovan Law Group

When two parents separate, it must be decided who is going to pay child support and how much will be paid.  Parents have an obligation to support their children in NB as well as in every other province of Canada.  For separating parents, that obligation arises at the date of separation.

Just like custody and access, child support can be a difficult issue for parents to work out.  If they cannot work it out, then they must apply to the Court for a Judge to determine the issue.  When deciding who will pay and what amount will be paid, we look at the Federal Child Support Guidelines.  These Guidelines can be assessed easily online.  All you need to know is the gross annual income of the parent who will pay, the number of children who are owed the support and the province where the paying parent lives.

You may visit mysupportcalculator.com to calculate the monthly amount owed once you input the information listed above.

Common problems I am typically presented with include:

(1) a failure to exchange full financial disclosure

(2) a refusal to exchange full financial disclosure

(3) verbal agreements on the amount to be paid and when

(4) failure to pay on time or at all, and (5) outdated Agreements or Orders.

In order to properly calculate child support in any fact situation, the parties must exchange full financial disclosure including the last 3 years of Income Tax Returns, Notices of Assessment, Notices of Reassessment, if any, current pay stubs; employment contracts, if any, and Financial Statements (Form 72J).  The general rule is the past 3 years from separation or date a variation is sought or needed but may extend to the past 5 years or longer, depending on the situation.  This is why it is so important to obtain legal advice.

If the exchange of disclosure process is sloppy or incomplete or simply not done at all, the parties run the risk of having their Agreements or Orders overturned or varied by the Court to their detriment.  The paying parent must be particularly concerned because he or she may be found to have underpaid for a certain period of time and ordered to pay arrears or “back pay”.  There is also the possibility of a Judge refusing to sign Orders for child support that are not supported by full financial disclosure even if the parties agree.  A Judge may also order child support to be paid even if the parties inform him or her that they do not want child support to be paid.

Often times to save money, parties will make their own agreements for child support either verbally or in an email or text message.  Be careful doing that! Verbal agreements are not worth much, if anything, if suddenly the parties have a different version of what they verbally agreed to.  This is another case of where “back pay” can be ordered.  Get your child support agreements in writing by a lawyer either by Separation Agreement or a court Order.

Child support Agreements can be filed with the Court and enforced through Family Support Orders Services like a court Order.  For Orders, if the Court directs, or the parties, or one of them, wishes, the Order can be filed with Family Support Orders Services and the payment of support collected through the Courts.  An account is set up for the parties and they are assigned an enforcement officer whose job is to ensure child support Orders and Agreements are being followed; meaning, the amount agreed/ordered is being paid in full and on time.  Be careful with Agreements that are not clear or are incomplete.  Enforcement may not be possible and you will likely have to visit a lawyer to have the drafting problems corrected.  Again, seeking competent legal advice at the start can help save you plenty of grief, time and money down the road.

Parties who let their Agreements or Orders become outdated run the risk of back pay being ordered or the Court denying claims for retroactive child support due to delay.  The parties are at risk of the Court requiring them to produce and exchange full financial disclosure back to the date of the Agreement, which could be a number of years.  Act every year to exchange full financial disclosure, even if you think there has been no change in income or circumstances.  A good time to do so is tax filing season.  Seek legal advice early if needed. 

Put your requests for disclosure in writing and be clear as to what you are asking to receive for disclosure.  If you experience a change in circumstances, good or bad, let the other party know and show the change.  If the change is good, and you don’t, you run the risk of a Court finding you have acted in bad faith or finding wrong doing on your part.  Again, the risk of being ordered to pay back pay is high.

When all is said and done, the general principle is that all children deserve to benefit from all the resources, means and income of their parents.

All for now

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