Retroactive Child Support
Retroactive Child Support
RETROACTIVE CHILD SUPPORT
If your income as a payor of child support increases and if you do not adjust child support payments, you may face an application for retroactive child support. Your child support obligations may be adjusted three years retroactively, however if the Court finds that you have engaged in blameworthy conduct the retroactive claim may go back to a date your income increased, causing you financial hardship if a lump sum is awarded.
The Courts rely on the judgment of the Supreme Court of Canada in DBS v. SRG, 2006 SCC 37 (CanLII), [2006] 2 SCR 231 for the definition of blameworthy conduct, namely, anything that privileges the payor parents own interest over his/her childrens right to an appropriate amount of support. They also rely on D.B.S. for the proposition that the withholding of information, or the failure to disclose income, constitutes blameworthy conduct. The Supreme Court of Canada held that the Courts should take an expansive view of what constitutes blameworthy conduct. The payors subjective intention is rarely relevant the real question is whether the payors conduct had the effect of privileging his or her interests over the childs right to support.
In D.B.S. v. S.R.G., the Supreme Court of Canada while commenting that applicant parents should not delay bringing applications for retroactive child support, the Court recognized that there may be a reasonable excuse for why the application was not brought earlier.
In Supreme Court of Canada said this:
Thus, it is reasonable and consistent with the obligations of child support that a payor be required to pay the support retroactive to the date the obligation arose, when the increase in income occurred, subject to the following exceptions:
where a payor has satisfied his or her additional financial obligation in some other manner,
where the payor has taken all reasonable steps to fulfill the obligation,
where the parties have made mutually satisfactory arrangements for child support which take the Guidelines and their effect into account, or
where the custodial parent fails to act diligently without reasonable excuse.
The Supreme Court of Canada makes clear that parents will not have fulfilled their obligations to their children if they do not increase child support payments when their incomes increase significantly. DBS does not require that there be blameworthy conduct on the part of the payor parent before a retroactive child support order can be made, but rather lists blameworthy conduct as one factor to consider. The Courts must look at all the relevant circumstances of the case, including blameworthy conduct, the needs of the children, the reason for any delay in applying for a variation, and the impact the award will have and on whom.
MARGARET SOBSTEL’