In November of 2019, the Honourable Madam Justice Dawn Pentelechuk wrote a decision for our Alberta Court of Appeal that changes the law. What’s new? Now a recipient parent may be able to apply to vary a child support order retroactively even after the child under the support order is no longer defined as a “child of the marriage” under our Divorce Act.
A child is no longer a child of the marriage if the child is over 18, finished high school, not attending post-secondary studies, and is not unable, by reason of illness or disability to live on their own.
Prior to this decision, applicants who wished to vary their orders retroactively were restricted to doing so while the child was still dependent. This resulted in recipients (and their child(ren)) being deprived of appropriate support for technical reasons only. Too many parents don’t pursue support adjustments earlier perhaps because they were not emotionally or financially in the position to file a costly and exhausting claim.
In coming to this decision, our Court of Appeal acknowledges the “statistical trend of children remaining with their parents for longer and longer periods…” and that “If inadequate support has been paid, the child loses, the recipient parent loses, or both lose” (Brear at para.55).
Going back to the Brear case, Justice Pentelechuk also offers a warning/reminder to payors to disclose their income annually and adjust their support accordingly. At para. 74 she states:
The Guidelines have been in force for 22 years. Parents know their support obligation is determined by their income. It is untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application. They know that any agreement reached on support payable is subject to the court’s oversight… If a parent chooses not to disclose significant increases in their income, this likely constitutes blameworthy conduct as defined in DBS at paras 107-108.
Payors who do not wish to have a retroactive child support claim made against them need to annually disclose and adjust their child support to the Federal Child Support Guidelines.
If you need advice about your support arrangement please reach out to Moe Hannah LLP and we will be happy to assist you with this.
