Family Practice: What the SCC said about retroactive child support

The DBS v. SRG cases at the Supreme Court of Canada determined that courts have the jurisdiction to award retroactive child support and that in appropriate cases they should do so.

This column deals with what the court decided, while the next one will set out what it might mean. This is a dense and complicated judgment (apparently the longest majority judgment issued in 2006) and there are many key findings (some new and some not new). These are some of them.

The judgment identifies a set of core principles on child support previously endorsed by the Supreme Court and that continue to apply. None are new or surprising: the child support obligation arises upon birth; child support is the right of the child; child support should provide children with the same standard of living they enjoyed when their parents were together; the amount of support will vary based upon the income of the payor.

The legal basis of child maintenance is the parents’ mutual obligation to support their children according to their need. That obligation should be borne by the parents in proportion to their respective incomes and ability to pay.

The court found the term “retroactive” misleading in the technical sense, as “retroactive” awards do not hold parents to a legal standard that did not exist at the relevant time. Any incentives for payors to be deficient in meeting their obligations should be eliminated. Retroactive awards are not to be regarded as exceptional orders to be made in exceptional circumstances.

The court is to look at the conduct of both parents in making these determinations. The fact that child support is an application-based regime means the responsibility of ensuring the proper amount of child support is being paid does not lie solely with the payor. Unreasonable delay by the recipient in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor will have the opposite effect.

The court determined that, where ordered, an award should generally be retroactive to the date the recipient gave the payor effective notice of her intention to seek an increase in payments.

The court specifically held that the Child Support Guidelines does not burden a payor with an automatic disclosure obligation every time his income increases. But it held that a payor who does not increase his payments to correspond with his income will not have fulfilled his obligation to his children.

The court made specific distinctions between the federal regime and the various provincial regimes, reminding counsel and judges that careful attention should be paid to the legal framework for the child support obligation.
The court set out a process to follow when determining these issues. First, what is the legal status of the support obligation? Is it a court order, an agreement, or no order or agreement?

Where there is a court order, a payor who complies with it can be presumed to have fulfilled his obligation towards his children. However, both parents must continually ensure the children receive the right amount of support. If the payor is deficient in his upport obligations, a court can vary an existing order retroactively.

Where there is an agreement and a payor who complies, there is not the same presumption created that the payor has fulfilled his legal obligations to the child. The greater the change in circumstances, the less deference will be paid to compliance with the agreement.

The difference between an agreement and a court order cannot be ignored.

Where no child support is being paid there is no presumption that the payor is fulfilling his legal obligations to his child. The court has the power (notwithstanding the absence of the term “retroactively” in s. 15.1 of the Divorce Act) to order retroactive support in an original application for support, as the court is only enforcing an obligation that existed.

Next, the court is to consider if there are any legal excuses or exemptions that apply. DBS sets out several.
The court is to consider the conduct of both the recipient and the payor (specifically, delay by the recipient and blameworthy conduct by the payor). Delay in seeking child support is not presumptively justifiable. Recipients must act promptly in monitoring child support.

The difference between a reasonable and unreasonable delay can be determined by the conduct of the payor. A payor who informs the recipient of income increases in a timely manner, and who does not pressure or intimidate her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable.

A court can find the recipient’s delay reasonable if the recipient is afraid of the payor, lacks the financial or emotional means to go to court, or if she got inadequate legal advice. Unreasonable delay by the recipient does not eliminate the payor’s obligation, but is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award.

Blameworthy conduct by a payor is anything that privileges the payor’s own interests over his children’s right to an appropriate amount of support. This includes hiding income increases, intimidating the recipient, not disclosing a material change in circumstances, or misleading the recipient into believing that the child support obligations are being met when he knows that they are not. Whether a payor is engaging in blameworthy conduct is a subjective question for the courts.

The court can take into account hardship in the circumstances of the child. However, hardship suffered by other family members is irrelevant in determining whether retroactive support is owed.

The court can take into account hardship in the circumstances of the payor, including hardship to the payor’s subsequent children. The court is not willing to give the children of a previous relationship any priority over subsequent children.

Once a court determines retroactive child support should be ordered, it must decide the date to which the award should be retroactive and the amount of support. In DBS, the SCC adopted the date of effective notice as a general rule.

Effective notice means any indication by the recipient that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Effective notice does not require the recipient to take any legal action; all that is required is that the topic be broached.

The court is clear that raising the issue with no action being taken will not support a later claim for retroactive support during this period. Once the recipient raises the issue of child support, discussions should move forward and legal action should be contemplated.

The court has also added a new limitation period for retroactive child support awards (even though it was not argued before the court). It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor. Note the difference between the reliance on the date of effective notice as the usual start date and the reliance on the date of formal notice for the three-year period.

The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start, particularly where the payor engages in blameworthy conduct.

The court sets out this as the proper approach: payors will have their interest in certainty protected only up to the point when that interest becomes unreasonable.

In the majority of circumstances, that interest will be reasonable up to the point when the recipient broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor must act responsibly: he must disclose the material change in circumstances to the recipient.

Where the payor does not do so, there is no reason for the court to continue to protect his interest in certainty beyond the date when circumstances changed materially. A payor should not be permitted to profit from his wrongdoing.

Carole Curtis is a family law lawyer in a three-lawyer firm in Toronto. She was counsel for two of the four mothers who were the respondents in these appeals, including counsel in the lead case DBS. Curtis can be reached at [email protected]

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