In a recent case released by the Alberta Court of Queen’s Bench, the Court considered the question of how far back in time a payor may go in attempting to recalculate child support for overpayment.

In Hrynkow v. Gosse, 2017 ABQB 675, in 2014 the father had agreed to child support payments on the basis of an annual income of $300,000.  At the time the father agreed to this number, he was self-represented and earning his income through his own corporation.  As a result his agreed upon income was inflated beyond what he actually personally earned.

In August of 2015, the father brought an application to have his child support reduced to an amount that was based on his actual personal income.  The matter was set down for a hearing in February of 2016, but was adjourned when the Court of Appeal issued a separate decision that impacted the respective legal positions of the parties in Hrynkow v. Gosse. As a result, the matter was ultimately not heard until August 31, 2017.

At issue, was how far back the father could seek to retroactively change his child support.  The father was asking the Court to go all the way back to when he first agreed to the 2014 Order.  The mother, on the other hand, was asking the Court to only go back to when she first received “effective notice” that the father was seeking to vary his child support – when he filed his application in August of 2015.

The Court considered the issue and ultimately held that the child support could only be varied back in time to August of 2015, when the father first filed his Application.  The father had argued against this relying on the foundational Supreme Court Case of DBS v. SRG, [2006] 2 SCR 231.  In DBS the Supreme Court held that it is possible to grant an order changing child support retroactive to before the “effective date” that notice was given.

However, in considering the application of DBS the Court in Hrynkow v. Gosse drew a distinction between the two cases.  In DBS the Supreme Court did state that variations to child support can go back to dates before formal notice is given to the other party of the intention to vary child support.  However, the Court in DBS was addressing the circumstances when the recipient of Child Support is seeking an increase in Child Support.

In Hrynkow v. Gosse, the situation was different, as it was the party paying the child support who was seeking to reduce it retroactively.  On the basis of this difference, the Court in Hrynkow v. Gosse held that going back beyond the “effective date” of notice would be unfair to the children.  This was based on the idea that before formal notice of an intention to vary child support is given, the children and their primary caregiver could rely, with certainty, of setting their standard of living and financial expectations as per the amount that was ordered.  To allow the father to vary child support beyond the date he gave notice to the mother, could potentially be economically harmful by seeking repayment from a period when the mother and the children had certain economic expectations.  However, once the father gave notice of this intention to seek a variation, the Court found it reasonable that the mother and children could prepare for a potential change in child support and plan accordingly as of that date of notice.

This is significant for payors of child support in that it is prejudicial to delay on bringing an application to vary child support if you think that you are overpaying.   The Court has spoken clearly that payors can only go back and correct child support to the date that they have informed the other party of their intention to do so.  Any delays in bringing notice to the other side will result in overpayments that will never be recovered.

If you believe that you are overpaying child support you should act quickly to ensure that you have given notice of your intention to seek a variation. The team of lawyers at Mincher Koeman LLP can help you with your Child Support.  Contact us at 403 910 3000 or reception@mincherkoeman.com.

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