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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