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RETROACTIVE CHILD SUPPORT

Back in 1995, the Court of Appeal in MacMinn concluded that child support "is an obligation which exists from the time a child is born".  Subsequent Court of Appeal cases, having taken this into consideration, decided that back child support, also known as retroactive child support, would be awarded only in "exceptional circumstances" having regard to the blameworthiness of the payor and the diligence of the payee in pursuing a remedy.  This put the onus on the payee to pursue either obtaining support in the first place, or an increase of support if warranted.  It also meant that provided the payor wasn't acting in a "blameworthy manner", such as purposely avoiding or under-paying support, it was unlikely that the Court would order retroactive support past the initial date of the application.

In January of 2005, ten years after it's decision in MacMinn, the Court of Appeal released three important cases regarding retroactive child support, commonly referred to as "the trilogy".  The trilogy effectively turned the law of retroactive child support as we knew it, on it's head.  Under the trilogy, the triggering event for an increase in child support is an increase in the payor's income - plain and simple.  If a payor's income goes up, then their child support should go up as well.  The Court determined that a payor can easily determine his or her child support obligation by reference to the Federal Child Support Guidelines, and accordingly, should understand that a change in income will lead to a new child support amount.   The obligation for child support does not depend on an action being commenced.  Also, gone is the requirement of the payee to pursue child support, as is the contributing factor of blameworthiness of the payor.

In the first case of the trilogy, S.(D.B.), the parties originally agreed to joint custody with the children to live with the father.  These terms were confirmed in a Consent Order in March of 1999.  A few months later, the parties began a shared parenting arrangement on alternating two-week periods.  Although the father's income was higher, he did not pay the mother any support.  In April 2003, the mother brought an application for child support.  The Court of Appeal awarded retroactive child support to the time when the parties started the shared parenting arrangement (almost four years previous).  The Court stated that the main reason for the change in philosophy regarding retroactive support was the implementation of the Federal Child Support Guidelines, because "by design, the extent of the financial obligation of the payor can be determined without resort to the courts".  The Court further stated that the Federal Child Support Guidelines redirected the focus from "need" to "entitlement".  The analysis and decision in S.(D.B.), has effectively taken away the discretion of the Court in terms of retroactive support.  In fact, the Court of Appeal indicated that a court's discretion is to be minimized, and when exercised, should be made "in favour of those intended to benefit from the legislation - children - and not to grant concessions to those who failed in their parental obligations".

The subsequent two cases of the trilogy followed the reasoning of S.(D.B.).  In Henry, a lump sum retroactive child support payment was ordered in excess of $100,000.00, because although the payor voluntary increased his child support payments from a 1991 Consent Divorce Judgment, the amount he had been paying was still less than what he should have been paying under the Federal Child Support Guidelines.  In L.J.W., the payor was ordered to pay retroactive support, even though he had four other dependants and an annual income of only $23,000.00.  Ironically, the possibility of the decrease of child support payments retroactively was avoided by the Court in all three decisions.

Leave has been requested from the Supreme Court of Canada to appeal the Henry decision, however, regardless of the outcome, it is clear that retroactive child support awards are here to stay.  Given this, it would be in every payor�s best interest to provide their updated income information to the payee each year, and if their income has increased, to adjust their child support payments accordingly.  The risks are too high not to.

By Danielle Elder
July 20, 2005