DBS v SRG: Retroactive child support claims.

Date01 January 2020
AuthorBoyd, John-Paul

I was not short of choices when LawNow asked me to write about one of the most important family law cases in the last twenty years. After consulting with Sarah Dargatz, my fellow columnist on family law issues, I decided to talk about DBS v SRG, a critical 2006 decision of the Supreme Court of Canada on the law relating to retroactive child support claims.

While most court orders take effect--begin to work, that is--only at the moment a judge makes them, a retroactive order is meant to take effect at some point in the past. Child support is money paid after separation by one parent to the other as a contribution toward the day-to-day costs of raising a child. A retroactive child support claim, therefore, is an application seeking an order for the payment of child support starting at a date earlier than the date the order is made, sometimes long before the date the application for support is delivered.

Before DBS, the law in this area had become confused, with some judges saying one thing and others saying another. This made it very hard to predict the outcome of an application for retroactive child support. Two of the key functions the Supreme Court of Canada serves is correcting the law when conflicting lines of cases emerge and clarifying the legal tests that apply to a problem. These functions are the real importance of DBS.

Personally, I really enjoy decisions like DBS because they give the court the important opportunity to talk about the principles and theories that underlie the framework of family law in Canada. To really understand family law, you need to understand its philosophical foundations. Why and when can retroactive child support orders be made? That is the question DBS answers.

In fact, DBS wasn't just one case but four. It, and the other three--LJW v TAR, Henry v Henry and Hiemstra v Hiemstra--came from the Alberta Court of Appeal. All concerned claims for retroactive child support, some of which were successful at trial, others not. Some cases involved unmarried parents who had applied for support under provincial law, some were married and applied under the federal Divorce Act. In all four cases, the parent receiving child support had failed to apply to increase the amount of child support payable as quickly as they should have. This meant their children went without the level of support to which they were entitled as a result. The different circumstances behind each of the four cases allowed the Supreme Court of Canada...

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