Q. Retroactive Child Support Orders under the Divorce Act

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 490-498

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See note ⁴⁸⁷

Prior to the judgments of the Supreme Court of Canada in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra,⁴⁸⁸provincial appellate courts in Canada were divided on two fundamental issues relating to retroactive child support orders. The first issue related to whether Canadian courts could order retroactive child support to be paid for a period of time that preceded the commencement of divorce proceedings.⁴⁸⁹The second issue related to the criteria to be applied in determining whether retroactive child support

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should be ordered in the diverse situations where such jurisdiction is possessed by the court.⁴⁹⁰On the first issue, the Supreme Court of Canada has accepted the reasoning of the majority judgment of the Alberta Court of Appeal in Hunt v Smolis-Hunt⁴⁹¹ that "[a]n order for retroactive child support pre-dating the issuance [of] a petition for divorce is . . . a necessary incident to the dissolution of a marriage" and falls within the legislative authority of the Parliament of Canada. On the second issue, the Supreme Court of Canada was divided four to three. Subject to a potential finding of "undue hardship" within the meaning of section 10 of the Federal Child Support Guidelines, the minority judgment was disposed to holding parents fully accountable for any failure to pay increased child support in accordance with the Guidelines as and when their incomes materially increased. The majority judgment adopted a somewhat more conservative approach in endorsing the following conclusions:

1) So-called retroactive orders for child support are not truly retroactive. They simply enforce the pre-existing legal obligation of parents to pay an amount of child support commensurate with their income.

2) When an application for retroactive child support is brought, it is incumbent on the court to analyze the federal or provincial statutory scheme under which the application is brought. Different policy choices by the federal and provincial governments must be judicially respected.

3) The propriety of a retroactive award can only be evaluated after a detailed examination of the facts of the particular case.

4) Retroactive orders should not be regarded as exceptional orders to be granted only in exceptional circumstances. Although the propriety of a retroactive order should not be presumed, it is not confined to rare cases.

5) Child support is a right of the child that cannot be bargained away by the parents. Sections 15.1(5) to (8) and 17(6.2) to (6.5) of the Divorce Act control the extent to which parents can consensually determine their child obligations and the criteria defined therein take account of the standards prescribed by the Federal Child Support Guidelines. Corresponding legislation is to be found under provincial child support regimes. Courts may order retroactive child support where circumstances have changed or were not as they appeared when a prior parental agreement was reached or court order was made.

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6) The underlying premise of both federal and provincial child support guidelines is that the amount of child support should reflect the obligor’s income.

7) Quite independently of any court order or any steps taken by the prospective recipient, there is a free-standing obligation on parents to support their children commensurate with their income. A parent who fails to do so will have failed to fulfill his or her child support obligation. Consequently, a parent has an obligation to increase the child support payments when his or her income increases.

8) Although the Guidelines do not impose a direct obligation on an obligor to automatically disclose income increases and adjust child support payments accordingly, this does not mean that a parent will satisfy his or her child support obligation by doing nothing. If his or her income increases without an appropriate increase in the amount of child support paid, there exists an unfulfilled legal obligation that may subsequently merit enforcement by means of a retroactive child support award.

9) The obligor’s interest in certainty must be balanced with the need for fairness and flexibility. Relevant factors for consideration in determining whether a retroactive child support award is justified include whether there is a reasonable excuse why support was not sought earlier by the obligee; the conduct, blameworthy or otherwise, of the obligor; the circumstances of the child; and hardship that would be occasioned by a retroactive award. None of these factors is, in itself, determinative; the court should take a holistic approach.

10) An unreasonable delay in seeking support militates against a retroactive child support award, but the court must bear in mind that child support is the right of the child and cannot be waived by parental agreement. Courts should not hesitate to find a reasonable excuse for the delay where the applicant harbours fears about a vindictive response from the obligor or lacks the financial or emotional means to bring an application or was given inadequate legal advice. Conversely, a parent who discloses income increases in a timely manner and who does nothing to pressure or intimidate the applicant will have gone a long way towards ensuring that the delay is characterized as unreasonable. Such a characterization does not inevitably preclude a retroactive award. It is simply one factor to consider when the court seeks to balance the obligor’s interest in certainty with fairness to the children.

11) Blameworthy conduct, though not a prerequisite to retroactivity, is an important factor to consider in determining the propriety of a retroactive child support award. Blameworthy conduct is accorded an expansive definition and arises whenever a parent knowingly chooses to ignore

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or evade his or her child support obligations. An obligor who does not automatically increase his or her child support payments to reflect his or her increased income is not necessarily engaging in blameworthy conduct, but objective factors can be used to determine whether the obligor had a reasonable belief that he or she was meeting his or her child support obligations. Breach of contractual undertakings to disclose income increases and adjust the amount of child support to conform to the requirements of the Federal Child Support Guidelines...