In this British Columbia Supreme Court case, the parents of two children separated in 2001 and in 2003 entered into a separation agreement. The agreement stated that the father’s income was $90,000 per year and that he would pay $1,128.00 in monthly child support, together with some additional costs for transportation, as the children lived primarily with their mother on Denman Island. Later, the amount payable was increased to $1,600.00 per month to include the cost of certain extraordinary expenses.
At the time the mother signed the agreement she was not aware that the law provided for a review of child support each year and an adjustment, either upward or downward, depending on any change in the father’s income. The payment of $1,600.00 continued until February 2015 when the father arbitrarily, and without notice, reduced his payment to $800.00 per month, on account of the eldest child attaining the age of 19.
That was his first mistake…As a result of this unilateral action the mother retained counsel who informed her of the children’s rights to receive child support commensurate with their father’s income, as determined on an annual basis. Mother filed an application to vary child support in April of 2016 and in June of 2016 she became aware of the father’s income for 2013, 2014 and 2015, amounts of $477,000; $465,000; and $156,000 respectively.
With respect to the father’s sudden drop in income in 2015, it is noteworthy that by the time he filed his 2015 tax return in 2016 he would have been aware of his ex-wife’s claim for increased child support. Family law lawyers call this phenomenon “RAIDS”: recently acquired income deficit syndrome.
Before filing her application, the mother asked her ex-husband to reinstate the $1,600.00 a month payments, but he ignored her. That was his second mistake.
Later she learned that his income had been as high as $773,000 in 2010; $548,000 in 2011; and $444,000 in 2012. All this time she scrimped and saved what she could of her measly teacher’s aide earnings of $28,470 per annum in an effort to provide the bare minimum for her children, who, contrary to the law, were not receiving the benefit of their father’s increased income levels. Meanwhile, the mother had gone into debt to provide for her children.
Although the father was served personally with the mother’s application and was sent multiple letters advising him of the scheduled court date, he made his third mistake. He was a no-show at the hearing, so the court proceeded in his absence.
The court reviewed the applicable law, which generally provides that a court may go back three years with respect to a retroactive increase in support. However, in the absence of any argument to the contrary, Madam Justice Young found that the father was guilty of “blameworthy conduct”and that a large retroactive support award would not place a financial hardship on him. He was ordered to pay support based on his annual income from 2002 to 2017, an amount that totalled $522,408.24. He was also ordered to pay it immediately and to pay costs to his former spouse.
Would the retroactive order have been significantly different if he had attended the court hearing? That is difficult to ascertain, however, the usual evidence provided by a payor with respect to his conduct and his financial circumstances may have led to a smaller award and could also have given him more time to pay the amount ordered.