A solution to the dilemma of child support payors who blatantly disregard court orders by refusing to share tax returns.
By Doreen Nicoll
Published April 22, 2014
The Family Responsibility Office (FRO) is the provincial body that collects child support based upon a court order. The amount collected is based on the number of children being supported and the payor's income.
Charts have been developed to simplify this process. Generally, the charts are a guideline applied to children under the age of majority, but the amount can be altered at the discretion of a judge to fit family dynamics.
Special expenses like child care, shared custody, a child over 19 years of age with an illness, disability or attending university are all reasons that adjustments can be made.
The FRO is a provincial body that enforces court orders. It cannot change any of the terms in the support order or domestic contract. Only the courts can do that. And, here in lies the dilemma. A date for the exchange of income tax returns is stated in the final order issued by the court.
My original order issued August 2, 2006 stated: "Each year, no later than the 1st of June, each party shall provide the other the information required by s.21 of the Guidelines, including a complete copy of their income tax return filed for the immediately preceding taxation year, all attachments and any notices of assessment that have been received."
This ensures that if there is a change in income for the payor, it is taken into consideration and the support payments adjusted accordingly either up or down. To date I have never received my ex-husband's tax return voluntarily.
What usually happens is that every two years my ex-husband takes me back to court - it's called Legal Bullying, but that's another editorial. Our divorce was finalized in August 2006 and I have been to court three times since then, so far.
While we're at the case conference my lawyer brings up the fact that I have not received a tax return since the last time we appeared before a judge. The judge usually calls for a recess so that my ex-husband, a chartered accountant, can produce his tax returns. He pulls them out of a briefcase and that's when it becomes apparent that his income has gone up.
Both our lawyers enter into a complicated process of recalculating his current payments, as well as calculating the amount that is owing in arrears.
The most recent order, issued November 2012, states: "For as long as child support is to be paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines."
I'm still waiting for his 2012 tax return. I don't think that his income went down or I would have had the tax return in my hands the day after he filed.
I understand that I am not alone in this situation. Anyone dealing with an abusive ex is probably in the same boat. The FRO is doing exactly what it was intended to do - collecting the court ordered amount. The payor is breach of the court order.
Yet there is little that can be done short of the recipient making a motion, which generally takes a year from beginning to end and costs around $15,000 if they do not self-represent. Self-representation is extremely difficult when the other party is abusive and perceives a power imbalance.
So, I would like to suggest a solution to this dilemma of payors who blatantly disregard court orders by refusing to exchange tax returns. I understand that the FRO is a provincial body and that tax returns fall under federal jurisdiction.
However, this situation could be altered so that the tax return of a persistently tardy payor was made available to the FRO on the court-appointed date of exchange so that the standardized chart could be used to calculate any decrease or increase to the child support currently being collected.
In cases where there are no complications or extenuating circumstances, this seems like a cost effective solution to enforcing a court order and ensuring that the correct child support is collected.
Where there are objections or other complications, the payor could return to court to ask for a variance at the discretion of a judge for a fraction of the cost of a full motion.
Let's remember that we are talking about child support and our children's futures are hanging in the balance.
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