BC family law practitioners have come to believe that the courts will almost routinely allow for a retroactive child support correction in cases where a payor’s income has increased on an annual basis from the amount that was originally used to calculate the child support obligation.
However, it is now critical that family law lawyers in British Columbia and across Canada draft separation agreements and court orders in a way to provide for an automatic annual review. This review should also provide for a backdated correction of the child support payments once the payor’s new income has been disclosed. Failure to provide a mechanism for an automatic review annually and enforceable provisions to obtain disclosure can result in disaster for the recipient spouse and the child who is dependent upon that child support. Just as importantly, BC family lawyers who fail to provide for the annual review and mandatory disclosure may well face negligence claims by their clients.