Debunking the myths and legends that haunt family law, including those about getting out of your obligation to pay any or more support.
This article continues our series on debunking the myths and legends that haunt family law. Today’s topic: myths on ways to avoid paying child support.
A note about child support
First, let’s address what underlies these myths: that child support is something to be avoided. Canada’s lawmakers and courts have found that dependency and obligation follow the parent-child relationship. In the 2006 case of DBS v SRG, the Supreme Court of Canada noted that “upon the birth of a child, parents are immediately placed in the roles of guardians and providers” (paragraph 36). It further noted in the 2011 case of Kerr v Baranow that “both parents must put their child’s interest ahead of their own” and “child support is the right of the child” (paragraph 208).
Parents have an obligation to support their children whether or not they are in a relationship with each other. If the parents separate, a fair amount of child support must be paid, as set by our elected lawmakers. Paying child support is simply meeting some of your obligations to your children.
There are some fair concerns with how support is calculated in Canada. Discussions with lawmakers about the best way to do so continues. However, since the Child Support Guidelines came into effect, calculating support has generally been objective and consistent from family to family.
Myth: If my ex doesn’t know that my income has increased, I don’t need to increase my child support payments.
Myth: As long as I pay what the Order says, then my ex can’t come after me for support.
Parents should update, or “vary”, their child support orders whenever circumstances change. A common change in circumstances is a change in the payor’s income. Children are entitled to be supported by their parents, based on their parents’ incomes. Continuing to pay support based on an outdated income does not meet a parent’s financial obligations.
We expect that child support orders will change over time. The Federal Child Support Guidelines and most child support orders require parents to exchange basic income information every year. Changes to income should be noted and child support should be adjusted to reflect the changed income. Many provinces have programs that help with this annual adjustment, such as Alberta’s Child Support Recalculation Program.
Sometimes parents do not exchange income information and then the payor’s income increases. Once the recipient knows that the payor’s income has increased, they can apply for an adjustment back in time – called a “retroactive award”.
Myth: Who cares if they order support, I’ll just move away.
Canadian provinces have agreements with each other and several other countries to enforce each other’s support orders. We call these “reciprocal agreements.” If a court orders a parent to pay child support and that parent moves to a reciprocating province or country, that place can enforce the order.
If a payor does not pay support according to a court order, the government program set up to collect support can take several actions. This is true even if that payor is out of the country. For example, Alberta’s Maintenance Enforcement Program can seize a payor’s assets in Alberta (including bank accounts and land) and suspend provincial and federal licenses (including passports). If the payor returns to Canada, they can even be arrested.
Myth: I’ll just file for bankruptcy to get out of my support arrears.
Debts related to child (and spousal or partner) support – commonly referred to as “arrears” – survive bankruptcy. If a payor files for bankruptcy, they still must pay support.
If a payor’s income has changed and they can no longer pay the set amount of support, they may apply to apply to court to reduce their ongoing support. Sometimes the court will even eliminate (cancel) their arrears. A judge must first consider all the evidence and applicable law.
If a payor has high debt from the relationship, they can ask the court to reduce the amount of support they pay if they suffer “undue hardship” (see section 10 of the Federal Child Support Guidelines). Again, a judge first considers all the evidence and applicable law before ordering a reduction.
If a bankruptcy reduces or eliminates debt, that payor may no longer suffer “undue hardship” because of that debt. This means they would have to keep paying the set amount of support.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Sarah Dargatz
