Why not keep 100% of the family allowances in exchange for agreeing not to receive child support? The answer is simple: whether you are the debtor (payor) or the creditor (receiver), you are not protected against retroactive payment or reimbursement.
Let’s begin with the “family allowances”. In general, as soon as a child is born, the custodial parents receive two types of allowance, one provided by the federal government called the Canada child benefit and one provided by the Québec provincial government called Child assistance. The amount of the allowance is determined by the type of custody (shared or exclusive) and the family revenue (composed of the custodial parent and their spouse even if they are not the child’s biological parent). To be legally considered a spouse, the couple must be either married, in a civil union or de facto spouses. A couple must have been cohabiting for at least 12 months, unless they have had a child together, to be deemed de facto spouses. When a couple separates, they will only be considered separated once at least 90 days have passed since their separation (art. 14 of the Act Respecting Family Benefits).
As for child support, it is not established automatically once a separation occurs. The parties may determine amicably or through family mediation of an amount for child support. However, this agreement will depend on the good faith of both parents. In these situations, it is always recommended that the payments be made by cheque or bank transfer to leave behind evidence of payment. If no agreement is reached, the amount of child support can be determined by the Court and once a judgment is rendered, child support can be automatically withdrawn from the debtor’s salary or by other forms of execution.
Certain people, in exchange for not paying child support for children who are in shared custody, will declare that the other parent has exclusive custody of the children so that this other parent receives the entire amount of “family allowances”. Bad idea. Firstly, if it is discovered that a person, in bad faith, has made a false declaration, Retraite Québec can go back up to three years and recover the amounts received as family allowance (art. 23 of the Act Respecting Family Benefits). Additionally, the parent who did not receive the family allowance that they were entitled to can only recover 12 months of retroactive payments (art. 13 of the Act Respecting Family Benefits).
Furthermore, regardless of the agreement made by the parents in relation to family allowances, article 595 of the Civil Code of Québec states that “child support may be claimed for needs that existed before the application; however, child support cannot be claimed for needs that existed more than three years before the application, unless the debtor parent behaved in a reprehensible manner towards the other parent or the child.” Consequently, the payor of child support who has shared custody of his children for a few years, in addition to not being able to recover Child assistance payments for a retroactive period longer than 12 months, could be asked to pay child support for a retroactive period of 3 years.
Is it worth the risk?
Text written by Me Roxane Trudel-Pigeon