Family Practice: What the SCC’s retro child support might mean

The DBS v. SRG and related 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.

Last month’s column dealt with what the court decided. This column addresses what it might mean, some of which may surprise you.

The court sets out core principles about child support and other principles. It is reminiscent of the decision in Gordon v. Goertz (1996 decision on relocation), which did little to help parents involved in these very contentious cases. It basically set out a series of principles and then told us that each case must be decided on its own facts.

The court repeatedly refers to the question of “whether the parent is fulfilling his legal obligations to the children” in ways that suggest this is a new and overriding test in determining these applications. The test is a subjective one, to be determined on a case-by-case basis on an analysis of the facts.

The court holds that retroactive awards are not to be seen as exceptional. The unpredictability of a retroactive award is justified for the court by the fact that the payor chose to bring that unpredictability upon himself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.

The court sets out a process to follow when considering and deciding issues of retroactivity. First, determine the legal status of the support obligation. Is there a court order, an agreement, or no order or agreement? Then determine if there are any legal excuses/exemptions that apply (the court lists these factors to be considered: child’s age, recipient’s delay, payor’s blameworthy conduct, hardship to the child, hardship to the payor).
Then the court is to determine the proper retroactive amount to be ordered, including the proper commencement date.

Because child support is dependant on one parent making an application to court, a parent’s child support obligation will only be enforceable once an application to a court has been made. The court finds that this means the responsibility of ensuring the proper amount of support is being paid lies with both parents.

In the analysis about retroactive support, the court makes an interesting distinction between the existence of the child support obligation and enforcing the obligation - by going to court to get a variation to a proper amount, not enforcing by using the provincial scheme to chase the payments.

The court adopted the date of effective notice as a general rule for the commencement date of retroactive support awards. There are two new concepts with specific definitions that you will need to remember and understand: effective notice and blameworthy conduct.

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. All that is required is that the topic be broached. Blameworthy conduct is anything that privileges the payor’s own interests over his children’s right to an appropriate amount of support.

The court is very clear that once effective notice is given the recipient must move promptly to court if there is no agreement to an increased amount. Recipients should not enter into extensive negotiations if no increase in support is happening. Go to court, now. Delay in this will result in very limited or no retroactive support being awarded.

The court does not require the payor to disclose changes in income, unless there is an order or agreement. The court is clear that undisclosed substantial changes in income, which would result in substantial changes in the child support, will likely result in a retroactive order, which could go as far back as the date of the change in income. Such circumstances could remove the case from the protection of the three-year rule.

The court set out additional categories of discretion to allow courts to reduce the amounts of retroactive awards. The court then inserts an umbrella test of “fairness” into this analysis. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair. This is a new test in child support law.

The court rejected the approach of the Alberta Court of Appeal and the parties to treat court orders and agreements similarly and as well, to treat federal and provincial child support regimes similarly. The court applied a strict construction approach to these issues.

Conduct is back in family law as a factor for consideration in determining eligibility for retroactive child support. This is a new factor for child support. Courts are directed to look at the conduct of both the recipient (was there delay?) and the payor (was there blameworthy conduct?).

The court has also added a new limitation period for retroactive child support awards (an issue not before the Alberta Court of Appeal, not pleaded by any party at the Supreme Court, not argued by any party, and never mentioned by 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 parent. 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 court repeatedly refers to the “balance between certainty and flexibility,” describing it as fairness to children to be compared to certainty for the payor. This is a new test in the determination of child support obligations, and one not articulated in either the Divorce Act or the Child Support Guidelines.
The court refers to the need to deal with family law cases in a holistic way. Holistic is not defined, and has not been used in other SCC family law decisions.

The court can take into account hardship in the circumstances of the child, including the child’s needs at the time the support should have been paid. Ask for disclosure and go to court if you don’t get it or you don’t get an increase in support.

The court can take into account hardship in the circumstances of the payor, including to the payor’s subsequent children. The court is not willing to give children of a previous relationship any priority over subsequent children.
Read this case. You cannot understand the law of child support without it.

Carole Curtis is a family law lawyer in a three-lawyer firm in Toronto. She can be reached at [email protected] She was counsel in the lead case, DBS v. SRG.
Richard Cleroux’s The Hill column returns in two weeks.

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