WHEN WILL RETROACTIVE CHILD SUPPORT BE ORDERED?
By DOUGLAS J. MANNING,
Family Law Department
In 1997 with the implementation of the Child Support Guidelines a determination of an appropriate level of child support became much less controversial for the vast majority of child support payors recipients. The Guidelines established a simplified mechanism with which to establish a child support obligation at a given point in time. Separating parents could then confidently enter into a Separation Agreement, or be subject to a Court Order that established an appropriate payment of child support for the children of their relationship. However, it remains difficult to predict when it is appropriate to change the child support obligation in a retroactive fashion. That is to say, once an initial child support obligation is established, when will it change and what circumstances have to be in place to justify a change in the amount of child support.
One of the general principles of the Child Support Guidelines is that children living in separated households should continue to benefit from any increase in the standard of living of both their parents despite the separation, and, of course, there may be a reduction in child support if the income of the child support payor decreases for reasons beyond his or her control.
What is to happen when there is a significant increase in the child support payor’s income after the original order was made and several years go by without a change in the child support payment? Is the child support recipient entitled to an increase in child support, and if so from what date?
The Supreme Court of Canada grappled with these issues in four cases decided in 2006. Two of the cases involved child support in the context of common law relationships and two of the cases dealt with child support in the context of divorced spouses.
The Court referred to the general question of whether a parent is fulfilling his or her legal obligations to the children in the context of support and took the position that the answer to this question is a subjective one to be determined on a case by case basis after an analysis of all the facts.
It goes without saying, that a retroactive child support award can be avoided if the paying parent informs the child support recipient of an increase in their income and makes the adjustment in the child support payment accordingly.
The Court set out a process to follow when considering and deciding issues of retroactivity. Firstly, determine the legal status of the obligation – is it pursuant to a Court Order, Agreement, or some voluntary understanding? Secondly, determine if there is any legal excuse or reason to exempt the application of a retroactive obligation – such factors in this regard would include the child’s age; reasons for the recipient’s delay in making a request for a change in the child support; whether the payor’s conduct is blameworthy in some fashion; whether any hardships would be imposed upon the child by not awarding retroactive support; whether any hardship would be imposed upon the payor by imposing a retroactive award. Thirdly, the Court is then to determine the proper retroactive amount to be ordered. Lastly, the Court then is to determine the proper date from which the new amount of support is to begin to be paid.
In determining the appropriate start date for a change in the child support obligation, the Court adopted the principle that the Order may be effective from the date that notice is given to the support payor that a change in child support was being considered and sought. Notice then may mean any indication by the receiving parent that child support should be paid or that the current amount of child support needs to be renegotiated.
Also to be considered in determining a commencement date, is whether there is any blameworthy conduct on the part of the payor that suggests that he or she is preferring their own interest over the rights of the children to an appropriate amount of support.
Child support payors should be entitled to structure their own financial affairs with some degree of certainty including the level of their child support obligation. However, this entitlement is not to come at a cost that the children of the relationship will bear. If the support recipient can explain their reasons for the delay in seeking support, such as inability to find the support payor; inability to afford legal services; having to go into debt to maintain the children of the relationship; etc. then in all likelihood there would be a retroactive imposition of a child support obligation to the date that effective notice was given to the support payor that an increase was being sought.
Over the past decade it has become common for Separation Agreements and Court Orders to have terms requiring the annual exchange of income information in order to allow support recipients and payors to reconsider the appropriate amount of their child support obligation given a change in the payor’s income. Obviously, if a support payor fails or refuses to provide their income information on an annual basis, while legally obligated to do so, the court will have little sympathy for any request to limit the retroactive effect of a new support order that is being contemplated.
The Supreme Court went on to indicate that rarely should a retroactive award be made to a date earlier than three years prior to the support payor’s receipt of effective notice that a change in child support was being sought by the support recipient. In establishing this general principle, the Court referred to a balance between certainty and flexibility and couched its reasons in the general principles of fairness to children in their entitlement to support against the need for support payors to have certainty in their financial obligation. This three year limitation from the date of notice is a new test and not one set out in either Provincial legislation or Federal legislation governing child support obligations.
In summary, support payors need to carefully consider changes in their income and initiate discussions to change their child support obligations as they experience changes in their income (whether increase or decrease) and support recipients need to be vigilant in requesting ongoing income information in order to ensure that their children receive the support to which they are entitled.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
