Child support is the right of the child, and the courts take this obligation very seriously. Payors are expected to provide sufficient disclosure to determine their income, which is important for establishing how much child support should be paid. Even if the payor does not provide adequate financial disclosure, they may owe child support arrears based on their actual income in the past if it is different from their current income or if it is revealed to be different with further disclosure. These arrears can build up; in some cases, they can amount to over $100,000 for a prolonged lack of payment. Also, the court can order how these arrears will be paid, depending on the circumstances of the case. For instance, the payor may be ordered to pay in periodic payments or a lump sum. 

In this post, we will discuss when a court may order a payor of child support to pay their arrears in a lump sum rather than periodic payments, which can depend on the payor’s assets, whether they failed to disclose their finances and the child’s needs. We will examine a case example, Edden v Foley, 2024 ABKB 48, in which the court found that the payor’s father was required to pay over $100,000 of child support arrears in a lump sum, despite this being a significant amount. This post will provide important takeaways for parties going through a divorce where child support is an issue. 

Overview of Child Support 

Child support is the right of the child, and payors are expected to pay the correct amount based on their income. The Federal Child Support Guidelines outline how a payor’s income will be determined for child support and how much support they will need to pay. Even if their income fluctuates over time, child support must be adjusted to match a payor’s income for that year. 

Non-Disclosure and Child Support 

It is, therefore, very important for a payor to ensure that they provide sufficient financial disclosure so that their income can be accurately determined. If there has been a lack of financial disclosure, the court will consider this at hearings and trial and it can have a significantly negative impact on one’s case as the court takes financial disclosure very seriously in family law cases. 

For example, if a party is found to have failed to provide sufficient financial disclosure, then the court may draw an adverse inference against them in an application. A payor who has failed to disclose adequately in the past will also have difficulty modifying child support to meet their income (i.e. if their income has decreased). A payor must be clearly informed of their disclosure obligations and provide financial disclosure, especially where child support is involved. Payors must provide sufficient financial disclosure to escape their child support obligations. 

Maintenance Enforcement Program for Child Support Arrears 

Alberta also has the Maintenance Enforcement Program (MEP), which can assist parties with child support arrears. This program works to collect payments from payors based on court orders or agreements.

After a party files their maintenance order from the court with MEP, they can work on a payment arrangement for the arrears. However, the court can order that payments be made on a lump sum basis, as in the Edden case discussed below. 

When May A Court Order a Lump Sum Payment for Child Support Arrears?

Sometimes, the court may find it more appropriate for the payor to pay their child support arrears as a lump sum rather than periodic payments. The court can consider whether the payor has made adequate financial disclosure in the past. If the payor had a history of failing to provide adequate disclosure, then this may be a factor in favour of ordering a lump sum amount so that the recipient party does not need to continue seeking payments on a periodic payment schedule. In other words, if a payor has failed to provide adequate disclosure in the past, they will not be seen as a very trustworthy party who can continue making payments periodically. 

The court can also consider the circumstances surrounding the child. For example, if the child is a bit older, the court may be more inclined to order a lump sum payment because they will soon be too old for child support. Also, the court may find that the child will benefit significantly from the catch-up payment if they have missed out on a significant amount. 

The court will also consider the payor’s ability to pay, which can include assessing the assets held by that party. For instance, if the payor owns various properties, the lump sum child support arrears order could be registered against the titles of the properties. The court can also consider whether a lump sum payment would cause hardship on the payor if they needed to pay the full amount in a single payment. 

In the Edden case, for example, the father was required to pay child support arrears of over $100,000 to make up for unpaid amounts in previous years. There was some uncertainty over the father’s current income, so the mother was seeking for the amount to be largely paid in full, secured on his assets. 

The court ordered the father to pay the arrears in full as a lump sum to the mother. The court found that the father failed to provide adequate disclosure concerning his income for a number of years, including significant increases in his income for a period of time. Also, the child was almost 15 by the time of the application, so they would soon be too old to receive child support. Therefore, the court thought it was appropriate for a lump sum payment to be made so that the child could benefit from child support after receiving inadequate amounts for a long period of time. 

The father was also able to pay the lump sum amount, as the court found that he held multiple properties and a half interest in a valuable corporate business venture. The father did not prove that he would suffer hardship if he had to pay the lump sum amount. The court noted as well that it was more important to address the shortfall in child support than the potential hardship on the payor. 

Contact Mincher Koeman Family Lawyers for Assistance with Child Support

Child support is the right of the child, including retroactive child support. Even if a party pays some child support, the court will ensure that the proper amount is paid, so you should speak with our family law lawyers at Mincher Koeman, who are experienced in assisting parents with child support claims. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children in your divorce case.

To book a consultation, please get in touch with us online, or by phone at 403-910-3000.

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