Don't Give Up Your Day Job, Jack...Just in Case!

This week, TMZ.com uncovered that soap opera legend Jack Wagner, and ex-beau of Heather Locklear, has a 23-year-old daughter, Carrie, whose existence he knew nothing about. Turns out that in the 1980s, Jack had a fling with an unidentified woman who became pregnant with Carrie and put her up for adoption soon after birth.

Carrie, who was desperate to discover the identity of her biological father, hired a Private Investigator to track him down and the investigation led to a concert in Boca Raton, Florida, where Jack Wagner was performing with Rick Springfield.

The two instantly connected and have been inseparable ever since. After working in so many soap operas, Wagner now seems to be living in one.

However, the reality of the situation is that despite this amazing connection and the reunion of a father and his daughter, Jack managed to dodge a child support obligation throughout Carrie's dependent life.

In addition, since Jack is an incredibly high-income earner, he would have been on the hook for a significant amount of money for at least the first 18 years of her life. But now, Carrie is 23 years old. Has she missed the boat with regard to a claim for retroactive child support?

The current law in Ontario is that in order to qualify for retroactive child support, the definition of child or child of the marriage must be satisfied under whichever Act, i.e. the Divorce Act or the Family Law Act, you choose to bring your claim. Therefore, the child must still be eligible for child support. At 23, Carrie may be independent and therefore no longer eligible for child support.

However, if she is currently enrolled in a full-time educational program at university or college and thus still requires parental support, she, or her parents may be able to bring a claim for retroactive support.

Assuming that she is enrolled in a full-time educational program and therefore satisfies the definition of child of marriage, then the following test would be used by the Ontario courts when making a determination regarding retroactive child support:

  • Determine whether a retroactive award is appropriate by considering the following factors:
    • The reason for the recipient parent's unreasonable delay in seeking child support;
    • The blameworthy conduct of the paying parent;
    • The past and present circumstances of the child; and
    • Any hardship imposed by a retroactive award
  • Determine what period the amount should cover:
    • When did the recipient parent give effective notice, i.e. inform the payor parent of a desire for an award or an increase in an award. Generally, support will not be made retroactive to a date more than three years before formal notice was given.
  • Determine the proper quantum (i.e. amount)

The quantum is determined in accordance with the applicable legislative scheme, i.e. the Child Support Guidelines; or
The courts may choose to alter the time period that the retroactive award captures if doing so would ensure overall fairness.
If, however, Carrie is not enrolled in a full-time educational program and is therefore an independent, neither she, nor her parents may bring a valid and viable claim for retroactive child support.

This is especially so pursuant to an Ontario Court of Appeal decision in 2002 when the claims of two adult children and their mother were dismissed. They claimed that their father had a fiduciary obligation to make adequate provision for their support and sought compensation for breach of fiduciary duty and unjust enrichment. The Court of Appeal rejected their claims on the basis that they were claims for retroactive child support and that as the children were grown and no longer "dependents", there was no basis for same under Ontario legislation. The Court of Appeal therefore concluded that it was "plain and obvious" on the facts of the case that the father did not breach any fiduciary obligation to support his children. The Supreme Court of Canada also agreed with this reasoning in another case.

As such, it may be too little, too late for Carrie to get the child support to which she was entitled throughout her childhood and adolescence. However, judging by the happiness she is experiencing while getting to know her father, according to TMZ.com, it is probably safe to assume that she doesn't mind.

The assumptions set out above would apply if she was not adopted. However, since she was adopted she would have no claim for child support.

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