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Can I be forced to pay additional child support?

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Anonymous Asked:

According to our separation agreement (and for the past 6 years), my ex-wife and I have joint custody of our two children, their primary residence is with her and they are in my care each week from 9:00am Thursday to 6:30 pm Saturday (this has been fairly flexible). We agreed that I should pay her a lump sum of 1,200 per month to assist her with extra costs incurred by her because they are with her more of the time. We share all extra-curricular costs, as well as costs for things like clothes, shoes, movies, birthday parties, etc.. Our earnings are approximately equal. I recently asked her for a legal divorce and she is now asking me to more than double child support payments. Can I be forced to pay additional child support?  Nothing has changed and there have been no hardships to anyone, especially the children who are well taken care of. First, can she ask for more money after 6 years of following our legal separation agreement with no apparent problems? Secondly, can she demand retroactive payment if what we agreed upon was lower than the support charts indicate for my earnings? She is a doctor and takes several vacations a year. I have always supported my children but I do not wish to pay for her expensive habits. Thank you in advance.

Expert Comment:

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Thank you for your question. You have asked two specific questions. In relation to whether she can ask for more money after 6 years, the answer is without a doubt “yes.” This does not mean that she will obtain more money by way of child support; however she is absolutely entitled to pursue the request. Whether she is successful depends upon a number of factors, including the wording of the “legal separation agreement” that you mention, together with your current income and the exact access schedule that is in place (above you say that your schedule is “fairly flexible”) at the time that Court is commenced. If you telephone me at 866-557-3222 you can relay further facts and I can provide you with a free consultation which would involve more specific guidance.

In terms of your second question, there is specific case law that deals with retroactive payments. I would need further facts from you prior to commenting any further, although I will state that pursuant to Ontario case law it is difficult to go back more than three years for retroactive support. However, as you indicate that you do have a separation agreement my analysis would begin once I have had an opportunity to read that agreement. You are welcome to forward it to me as part of a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact Andrew Kania for a free consultation).

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