K. Retroactive Permanent and Variation Orders; Appeals

Author:Julien D. Payne - Marilyn A. Payne

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1) Retroactivity under Sections 15 1 and 17 of Divorce Act; Provincial Legislation

While section 15.1 of the Divorce Act is silent on the question whether courts may order child support to be paid for a period of time that preceded the commencement of divorce proceedings, the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra314has accepted the reasoning of the majority judgment in the Alberta Court of Appeal in Hunt v. Smolis-Hunt315that "[a]n order for retroactive child support pre-dating the issuance [of] a petition for divorce is, we suggest, a necessary incident to the dissolution of a marriage" and falls within the legislative authority of the Parliament of Canada.316Section 17(1) of the Divorce Act expressly empowers a court to retroactively vary child support orders. The exercise of this discretion may result in either reducing the amount of child support with a consequential remission of arrears or in increasing the amount payable, so as to conform in both instances with the stipulation in section 26(2) of the Divorce Act that child support should reflect the joint obligation of the spouses to maintain their children in accordance with their retroactive abilities.317

2) Interim Orders318

On an application for interim child support or for variation of a permanent order for child support under the Divorce Act, it is a common practice for the court to make its order effective as of the date when the proceeding was launched,319although a court may find this

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inappropriate in the circumstances of the particular case.320Courts are reluctant to back-date interim child support to a date prior to the filing of the motion because of the limited evidence available at the interim stage of a proceeding.321

3) Diversity of Judicial Approaches

There is no precise yardstick as to when retroactive child support should be ordered; claims for such relief should be considered on a case by case basis.322Neither the Divorce Act nor the Federal Child Support Guidelines imposes any direction or time limitation respecting retroactive support orders.

The jurisdiction of the court to order that retroactive child support be paid for a period preceding the date of the application to vary implies a right to order financial disclosure further back in time than the three years that customarily applies to variation applications under section 21 of the Federal Child Support Guidelines, although the court may impose temporal limits respecting the additionally required disclosure as a preliminary step to ascertaining whether even more financial disclosure will be required.323An applicant parent’s lack of due diligence cannot stop a proper claim for retroactive child support,324although a finding of actual acquiescence may go to the question of fairness.325Laches, being an equitable remedy, constitutes no defence to a statutory claim for a retroactive increase in child support.326If a child’s needs can only be met by a retroactive support order, the court should exercise its discretion accordingly but in doing so the court should ensure that the children benefit first and foremost and not the payee parent.327How-ever, the fact that the custodial parent will likely be the primary benefactor is no bar to retroactive child support where that parent has borne an unduly onerous financial responsibility for the upbringing of a child in the past,328even though the child may soon cease to be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.329It is open to question whether a retroactive order for support should be granted when an application for interim support has been dismissed,330but in a proper case a court may grant retroactive support, regardless of whether there has been a prior order for interim

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support.331Failure to bring an interim application for child support constitutes no bar to a retroactive order being granted by the trial judge where the obligor was aware of the claim from the onset of court action,332 but the amount of retroactive support may be reduced where it would cause hardship to the payor and the children in his custody.333A trial judge may revisit an order for interim child support where the actual financial circumstances of the obligor only became known at the trial and, in such circumstances, an order for lump sum retroactive child support may be deemed appropriate.334When a trial judge is asked to deal with a claim for retroactive support that embraces the pre-trial period, the first issue to consider is what child support was properly payable during that period. Such an analysis must be undertaken to determine what adjustment, if any, should be made to a pre-existing interim child support order. The adjustment may operate in either of two ways; it may favour the payor parent or it may favour the recipient parent.335If an adjustment is deemed appropriate, the court must determine whether the accrued obligation should be discharged by a lump sum or by periodic payments or by a combination of both.336In granting an order for retroactive child support, the court may order that interest shall be payable on the arrears thereby created.337A retroactive order creating instant child support arrears may be deemed inappropriate where a disabled parent has no present or future capacity to discharge such arrears.338

An order for retroactive application of the Ontario Child Support Guidelines will only be granted where circumstances render it expedient, practical and fair.339While retroactive support may be denied where there is no need demonstrated during the period, there was no debt incurred and payment ordered may represent a capital windfall,340these considerations may not apply when government seeks contribution or recovery of past social assistance payments, and there has been bad faith demonstrated by payor and recipient in arranging a collateral benefit outside the continued payment of public funds.341Retroactive child support may be denied where such an order would amend a comprehensive spousal settlement reached after protracted negotiations at which both spouses were legally represented.342Where the obligor paid periodic child support for many years

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pursuant to a purportedly final settlement, without any expectation that it might subsequently be judicially reviewed, the court may conclude that retroactive child support should not be ordered with respect to the period of time that elapsed before commencement of the application.343Similarly, an order for retroactive child support may be deemed inappropriate where an interim-interim order for child support has remained unchanged for several years.344A court may refuse to order retroactive child support either by way of a lump sum order or by way of future additional periodic child support payments where the obligor’s ability to pay ongoing prospective periodic child support would be impaired by any additional obligation.345Prospective orders for child support should be based on the obligor’s current income, whereas retroactive orders should reflect the obligor’s actual or imputed income at the material time.346A court should not grant a retroactive order for reduced child support where this would deprive the children of support for a period of time because of the custodial parent’s inability to reimburse the "overpayment."347

4) Enumerated Factors Relating to Retroactivity348

Prior to the judgments of the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra,349provincial appellate courts in Canada were divided as to the criteria to be applied in determining whether retroactive child support should be ordered in the diverse situations where such jurisdiction is possessed by the court.350In the aforementioned appeals to the Supreme Court of Canada, the seven person court 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.351

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  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.3524. Retroactive orders should not be regarded as exceptional orders to be granted only in exceptional circumstances. Although...

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