Annual Review of Child Support
by
I thank my colleague Georgialee Lang for bringing this case to my attention.
When child support is payable under a separation agreement, the terms of payment, including the amount of the support, are reviewed on an annual basis. This is provided for in the Federal Child Support Guidelines which can be found here. FCSG
When drafting separation agreements, we as lawyers, try to set out as clearly as we possibly can, the procedure for annual review of child support, by detailing the timing and details of documents need to be provided to each party. The clause usually reads something like this
"For so long as the Children
are eligible to receive child support, the parties will exchange copies of
their respective income and corporate tax returns for the previous year,
including all attachments, by no later than May 31 each year and copies of any
Notice of Assessment or Reassessment provided to them by Canada Revenue Agency
immediately upon receipt, with child support to be adjusted, if necessary, for
the following year beginning July 1 of each year based upon the Respondent’s
financial information.”
The Court of Appeal in R.A. v. W.A. 2017 BCCA 126 has drawn attention to this clause as follows:
"The difficulty is that the provision, while stating
that support is “to be adjusted” does not explicitly set out how it is to be
adjusted. There are various possibilities. The adjustment might be “automatic”,
based on a tax return and the table set out in the Federal Child
Support Guidelines. Alternatively, it might require agreement or a court
order. If agreement or a court order is required, it is not clear what sort of
interim adjustment, if any, is to be made, or who bears the onus of bringing
the matter to court for resolution... I make the obvious observation that, particularly in
high-conflict family cases, it is essential that obligations under court orders
are easily ascertainable. Where an order provides for adjustment of child
support, the mechanism for adjustment should be fully articulated."
A good reminder to lawyers and separating parties that, although it seems tedious, and you may roll your eyes when you are presented with a 30 page separation agreement, more detail up front, saves aggravation and legal fees down the road. My suggestions to avoid the pitfalls outlined above are:
1. Clearly set out the mechanism and timing for review.
2. Clearly set out the mechanism for dispute resolution if no agreement can be reached.
3. Attach to your separation agreements, a document where the parties can formalize the changes to child support on an annual basis. I call this "Addendum: Annual Child Support Review"
I am happy to share it with you, just send me an email.
As always, talk to your lawyer if you need legal advice
