Retroactive Child Support – Bray v. Bray

The parties in this case were married on October 25, 1986 and subsequently separated in August 1991. There was one child resulting from the marriage, who was born on July 22, 1988. A Separation Agreement was executed by the parties on December 21, 1992. The Agreement required the father to pay child support for his one child in the amount of $700.00 per month. Of course, this Agreement was put into place prior to the enactment of the Child Support Guidelines. The Agreement, among other things, contained a material change in circumstances provision that applied to the support section in the Agreement.

The child in question attended private school in the 6th grade, and the Respondent paid the $14,000.00 yearly tuition. The Applicant paid other expenses related to the child’s private schooling, which totalled about $4,000.00 per year. Further, in 2003, the Respondent’s mother passed away, leaving in her will a trust fund in the amount of $500,000.00 for the child for when he turned 25 years old. The Respondent, however, was appointed sole trustee of the trust, and the Respondent was given the right to encroach on the funds for, amongst other things, the child’s educational expenses. The Respondent did not disclose the details of the trust to the Applicant until during the course of the present conflict. The evidence at Court established that the Respondent used monies from the trust to pay the child’s private school tuition, rather than using his personal funds, as he had done in the past.

The Applicant testified that she approached the Respondent for an increase in child support in 2006 when the child was expected to head off to university, and expenses were expected to increase. The Respondent used the trust fund to pay for the child’s tuition and books at University. The Applicant submitted that she was not aware of the details of the trust fund until during the current litigation.

The Applicant in this case was seeking an order to vary the Separation Agreement, and requiring that in its place the Respondent pay child support in accordance with the Federal Child Support Guidelines. In addition to the above orders, the Applicant was requesting an order for retroactive child support. The Respondent argued that child support should have been terminated as of the child’s 18th birthday, as the child was no longer “a child of the marriage”.

The Court held in this case that the child was still clearly a child of the marriage, since he was attending full time university. Further, in its decision, the court alluded to the fact that the father’s income had increased, and he was able to use the trust fund to pay the child’s school expenses. These two factors, according to the court, amounted to a material change of circumstances. Moreover, the Respondent’s failure to disclose the details of the trust fund to the Applicant constituted blameworthy conduct. As a result of all of the above, the Respondent was ordered to pay the Table Amount of child support from August 2003 when the Respondent’s mother died, until the child’s 18th birthday in 2006. This, of course, created a retroactive child support award in the amount of $47,000.00. The $700.00 agreement had between the parties in their Separation Agreement was ordered to continue to be paid by the Respondent from the child’s 18th birthday forward. The Court decided that the Table amount was not appropriate to be ordered after the child’s 18th birthday, as the child lived on his own during the school year with the Respondent paying for his rent, and the child lived with each parent for half of his summer holidays.

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  1. This decision demonstrates the importance of ongoing disclosure, even if it is not required by a Separation Agreement. No one wants to be responsible for retroactive support. It is always better to advise your former spouse of changes as they occur.

    In this decision I agree with the finding that child is a child of the marriage. I do not believe that the court could have found otherwise. The case law is pretty clear that if a child is in full time university working towards their first degree they are likely a child of the marriage.

    I further agree that retroactive support should be paid in this matter; however, I disagree regarding the reason for the retroactive support. I believe that the obligation to pay retroactive support stems from the material change in circumstance due to the payor’s increase in income. When the payor spouse has an increased income they should disclose it to the recipient spouse even if no ongoing duty to disclose income arises from the agreement. If a payor does not disclose the increase in income then they may be responsible for significant amounts of retroactive support, as is the herein case.

    I do not agree with the fact that the material change in circumstance that the court focuses on is the trust established by the payor’s mother. The payor may have had a duty to disclose the existence of the trust, but I do not believe that it necessarily should have effected the payor’s support obligations. Support is based on the payor’s income. The payor should have paid according to his income. There does not appear to have been a provision in the agreement requiring that each party have a certain percentage of the net disposable income. If that were the case then the payor paying some of the educational expenses from the trust would have been relevant. However, as the case stands I do not believe that the trust should effect support obligations. It was a gift from the payor’s mother for the child of the marriage. The gift was used solely to the benefit of the child. I believe the payor should retain any residual benefit of his mother’s gift to the child. This case demonstrates that not disclosing your full financial situation, even if you think it may not be relevant, can lead to a finding against of you of blameworthy conduct.

    Lastly I agree that guidelines support should not be paid for this child post his eighteenth birthday. He is living away at university and lives half his summer with each parent. Full guideline support to the recipient for this child would be excessive.

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