1. Are the support payments subject to the new child support rules given that the court order issued after May 1, 1997, retroactively replaces a XXXXXXXXXX court order? Is a retroactive court order “made”, for the purposes of the definition of “commencement day” in subsection 56.1(4), at the beginning of the first time period that payments were required to be made under the new order? Does subsections 56.1(3) and 60.1(3) apply?
2. The taxpayer has asked for our technical interpretation regarding three different possible scenarios (depending on the actual wording of the court order) under which the actual amount of the support payments the taxpayer is required to make in the future is reduced and:
a) his ex-wife is ordered to repay excess support payments made since XXXXXXXXXX
b) his ex-wife is not ordered to repay the excess support payments made but the overpayments are applied to future child support payments; or
c) his ex-wife is not required to repay the excess support payments and there is no offsetting reduction of future support payments the taxpayer will make. The taxpayer will commence a separate legal action against his ex-wife to recover the amount owing.
1. Question of fact. We do not have a copy of the court order so we can only issue general comments. According to the client’s lawyer, they will be asking the court to issue a retroactive court order (after May 1, 1997), replacing a XXXXXXXXXX court order such that there will be a reduction of child support from $XXXXXXXXXX per month before tax to $XXXXXXXXXX per month with taxes to be paid by the ex-wife retroactive to XXXXXXXXXX
2. We have only provided general comments about the three scenarios.