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Top court awards retro child support

|Written By Daryl-Lynn Carlson

It''s a read of blockbuster proportions, not in the vein of a John Grisham novel but for its implications on the everyday practice of family law.

Carole Curtis says every family law lawyer should read this decision on support from the Supreme Court of Canada.

And take note, the 89 pages of DBS v. SRG, LJW v. TAR., Henry v. Henry, and Hiemstra v. Hiemstra are about as laborious to digest at times as its title.

Yet, "if you're a family law lawyer and you read only one case in 2006, this is the one that you have to read," says Carole Curtis, a leading family law lawyer who represented the parties SRG and LJW in the complicated case released by the Supreme Court of Canada in the summer.

"Both sides of this equation, fathers' lawyers and mothers' lawyers, will find many quotes in this case to use in their arguments for or against retroactive child support," Curtis says. "It's one of those decisions that contain a lot of meat."

The matter involves four applications for retroactive child support and turns convention established by Justice John Laskin at the Ontario Court of Appeal in Walsh v. Walsh on its head.

"The umbrella principle [in the SCC case] is that courts have jurisdiction to award retroactive child support, and in appropriate circumstances ought to award it," says Curtis.

But, she adds, "In the case, there are many, many principles articulated."

In DBS, the parties had three children from a common-law relationship and following their separation neither paid support. In 2003, the mother applied for and was awarded support but her application for retroactive payment, declined at the lower court, was sent back to chambers for reconsideration by the appeal court.

In LJW, the common-law parents of three children achieved a maintenance agreement for support although the mother's subsequent claim for retroactive support - declined by the lower court due to the father's diminished income - was also sent back to chambers with instruction to find a creative arrangement.

Similarly, in Henry, the father's income decreased following the parents' divorce and support order, prompting the father to refuse to pay for a period of time.

An application by the mother for retroactive support was granted in this case, although one appeal court judge dissented over when the retroactive order should be effective.

And finally, in Hiemstra, an application for retroactive child support was awarded to the mother who had previously paid support to the father but had incurred the expense of the daughter's college tuition.

The Supreme Court held that the two applications for retroactive support in DBS and LJW were declined, while the appeals of retroactive orders in Henry and Hiemstra were dismissed.

Within the body of its decision, the SCC took into consideration a range of factors for courts to consider when determining the date - and amount - of retroactive support, or if it is warranted at all.

The factors for consideration include:

•    reasons for delay in a recipient parent's application,

•    whether a retroactive award would constitute hardship,

•    the family's general circumstances, and

•    the parents' behaviour or "blameworthy conduct."

The SCC suggested that a retroactive award commence at the time when the subject was "broached" by the recipient parent, but not extend beyond three years into the past.

The decision also advises that support awards be revisited and adjusted annually to keep step with changing incomes and family dynamics.

Basically, Curtis explains, "The court says each case must be decided on its own fact, which is discouraging for us because we want guidance, we want more help."

She notes that the court considered parents' conduct, "which surprises everybody" because child support has been traditionally viewed on merits of entitlement.

Curtis also deems interesting the court's instruction that a retroactive award be effective back to the date that the matter was "broached."

"In one of the cases I acted on, my client phoned the father and said the daughter needs braces. That would qualify as broaching an increase in support," she says. "But the truth is, on behalf of all the women I act for, I'm going to tell them that a lot more than that is needed.

"I'm going to be telling them that they need to be asking for annual disclosure and they need to be taking steps right away, if and when they get the disclosure, that there's been an increase in the income significant enough to merit an increase."

Curtis, along with D. Smith of Smith Family Law Group in Toronto, emphasizes that the decision is confusing.

It has already sparked a lot of erroneous assumptions among lawyers who've given the decision only a cursory review.

"I think there are an awful lot of lawyers out there who take a quick read of the case and came to the conclusion that 'Okay, we all go back automatically three years,'" notes Smith, who acted as counsel for the appellants in the case.

"That's absolutely not what the SCC says. There are 15 ways from Sunday that they stressed in the decision that by no means should it be considered that retroactive awards should be made in every case, or automatically made or that they're universally available," Smith says.

"What the court is stressing is that a trial judge, or a lawyer advising a client, is to decide as the first test whether a retroactive support order is appropriate at all," she explains.

There are "a variety of factors to be considered" such as whether the prospective payor parent has been paying for hockey, school trips, or other child benefits.

Smith also stresses that despite the SCC's instruction for full income disclosure by the payor parent, cases that are now in the courts will likely not be affected.

For example, if a wife brings an application for retroactive support based on the fact that a father didn't make full disclosure, the father's counsel can rely on Walsh, which rendered disclosure unnecessary and retroactive awards not applicable.

However, Smith foresees problems with the suggestion that support agreements be revisited on an annual basis. She points out that upwards of 700,000 Canadians pay or receive support, half of those through maintenance enforcement plans.

"The Supreme Court has said payors and recipients have to annually review child support. I think that's very beneficial to children," says Smith.

But it's impractical. Even if amicable parties readily agree on their plan, they'd have to make a court application every year, which takes three to five months to process.

Smith suggests an online registration system and databank be established to remove the process from the courts in agreements that aren't in dispute.

Otherwise, warns Smith, "We could see more and more people withdraw from the family responsibility office, and that would be a tragedy."

Lawyers interested in learning more can check the Law Society of Upper Canada continuing education schedule for a session slated for December.

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