Retroactive Child Support: Benefits and Burdens

Endnotes

  • * Assistant Professor, Osgoode Hall Law School.

  • [1] D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231 [SRG].

  • [2] The paper makes reference to a number of articles written about the SRG decision. In addition, the following lawyers/academics generously agreed to discuss the case with the author: D. Smith, Phil Epstein, Julien Payne, Carole Curtis, and Doug Moe.

  • [3] D.B.S. v. S.R.G., 2005 ABA 2; L.J.W. v. T.A.R., 2005 ABCA 3; and Henry v. Henry, 2005 ABCA 5.

  • [4] Hiemstra v. Hiemstra, SRG supra note 1.

  • [5] Two of the cases were commenced under Alberta's since-repealed Parentage and Maintenance Act, R.S.A. 2000, c. P-1, while the other two were commenced pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), and the Federal Child Support Guidelines, S.O.R./97-175. While the courts below were content to proceed on the basis that the analysis to be taken was common to each situation, the Supreme Court of Canada did not accede happily to this approach. At para. 51 of the decision, supra note 1, Justice Bastarache stated:

    I will reluctantly accept this proposition for the purposes of deciding these appeals. The parties do not dispute that Alberta courts, under the Parentage and Maintenance Act, have discretion to adopt the paradigm espoused by the federal regime. However, I cannot support a general approach that purports to follow the Guidelines whenever a court's discretion under applicable provincial law is invoked.

    For the purposes of this paper, the legislative analysis focuses on the Federal Child Support Guidelines.

  • [6] SRG, supra note 1 at para. 1.

  • [7] It is also possible for an initial support application to include a request for retroactive support in relation to past years.

  • [8] Supra note 5.

  • [9] Ibid.

  • [10] Note that this describes a basic amount of support owed. Often, children will have needs, or will be involved in special activities, that give rise to additional costs under s. 7 of the Guidelines. The guiding principle is that such expenses are distributed between parents in proportion with their respective incomes.

  • [11] Paras came to stand for the articulation of this approach: Paras v. Paras, (1970), [1971] 1 O.R. 130, 14 D.L.R. (3d) 546 (C.A.).

  • [12] Divorce Act, supra note 5, s. 17.

  • [13] Guidelines, ibid., s. 14.

  • [14] The majority consisted of Chief Justice McLachlin, and Justices Bastarache, LeBel and Deschamps. A minority opinion was rendered by Justice Abella on behalf of herself, Justice Fish and Justice Charron.

  • [15] SRG, supra note 1 at para. 36. The decision has been cited for this proposition subsequently in P.H. v. P.H., 2008 NBCA 17 and Doe v. Alberta, 2007 ABCA 50. For an interesting discussion of the theoretical underpinnings of the child support obligation, see Lucinda Ferguson, "Retroactivity, Social Obligations, and Child Support" (2006) 43 Alta. L. Rev. 1049.

  • [16] SRG, ibid. at para. 37. See also s. 26.1(2) of the Divorce Act, supra note 5 which provides: "The guidelines shall be based on the principles that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation."

  • [17] SRG, ibid. at para. 38.

  • [18] Ibid.

  • [19] Within this work, unless specifically noted, "enforcement" relates to judicial confirmation that a payor is required to pay child support, rather than to actions taken through provincial or territorial administrative regimes to enforce established support obligations.

  • [20] For a good discussion of the desirability of such schemes, see Dena Bonnet "Recalculating D.B.S.: Envisioning a Child Support Recalculation Scheme for Ontario" (2007) 23 Can. J. Fam. L. 115. Re-calculation services exist in Newfoundland and Labrador, Manitoba, Prince Edward Island and British Columbia. See Department of Justice (Canada), Inventory of Government-Based Family Justice Services: online. Note also that in Ontario, a current bill (Bill 133—An Act to amend various Acts in relation to certain family law matters and to repeal the Domestic Violence Protection Act, 2000, 1st Sess., 39th Leg., Ontario, 2008 (2nd reading and ordered to Standing Committee on Social Policy February 25, 2009) proposes the authorization of a support recalculation service. In Alberta, amendments were made to the Family Law Act to introduce a Child Support Recalculation Program (Alberta Statutes, Family Law Act, Part 3, Support Obligations, Division 1.1, Child Support Recalculation Program, Heading added 2008, c. 15 s.3; SA 2003, c. F-4.5, s. 55.1-55.8) These amendments are not in force.

  • [21] SRG, supra note 1 at para. 57.

  • [22] If the application is not brought pursuant to the Divorce Act, the court's ability to assert jurisdiction would depend on the specific provisions of the provincial or territorial legislation that serves as authority for the application.

  • [23] SRG, supra note 1 at paras. 60 and 94.

  • [24] Ibid. at para. 96.

  • [25] Ibid. at para. 77. In discussions following the decision, it has been noted that many people reach agreements for the payment of support rather than obtaining court orders, giving rise to the suggestion that this reality should signal a significant interest in having agreements upheld. According to Phil Epstein, it is important to consider potential administrative and legislative mechanisms that could ensure appropriate support payments and avoid the abrogation of agreements: Phil Epstein, Ontario Bar Association (Family Law Section) Panel Discussion: "More Certainty from the Supreme Court of Canada: Maybe You Can Get Retroactive Support" (20 September 2006) online [OBA Panel].

  • [26] A survey of 136 cases conducted by the author, where courts have purported specifically to "follow" the SRG ruling [Post-SRG Survey], does not reveal a tendency for courts to give any particular weight to whether an order or agreement underlies the support obligation.

  • [27] SRG, supra note 1 at paras. 86-90. Examples of post-SRG cases confirming the court's inability to assert jurisdiction unless the child continued to be eligible for child support at the time the application for retroactive support is brought are Cardinal v. Cardinal, 2006 NWTSC, Johnston v. Johnston, 2006 SKQB 465 and McDonald v. McDonald, 2008 B.C.S.C. 120. While, as D. Smith notes in "Retroactive Child Support—An Update" (2007) 26 C.F.LQ. 209 at 211, this is not a matter of judicial discretion, one can imagine circumstances where this limitation leads to unfortunate results. Lawyer Doug Moe provides one example: "A parent could hang on for a few months to bring an application on the expectation of a child continuing high school …, have the kid unexpectedly drop out after age 18 and lose any ability to have the payor parent meet their retroactive responsibility." (Email correspondence between Mr. Moe and the author dated 7 December 2007.)

  • [28] SRG, supra note 1 at para. 101. In Fallis v. Garcia, 2008 CanLII 25048 (Ont. Sup. Ct. J.), the court accepted that the mother's delay in pursuing litigation was understandable in light of the mental condition suffered by one of the parties' sons. In Eadie v. Eadie, 2008 BSCS 1380, the recipient mother's medical and financial circumstances provided reasonable justification for the delay in bringing variation proceedings. Financial resources, lack of self confidence necessary to commence court proceedings, and fear of the payor's temper were considered sufficient to justify the recipient mother's delay in B.(T.K.) v. S.(P.M.), 2008 BCSC 1350. In Schick v. Schick, 2008 ABCA 196, the Court of Appeal dismissed the father's appeal from a decision granting the mother child support retroactive to 2002. The Court accepted that the mother had been lulled into a mistaken belief about the father's income, and had been led to believe for a number of years that further litigation would prove fruitless. In Swiderski v. Dussault, 2008 BCSC 1629, the court accepted that delay on the mother's part in seeking a support variation stemmed from the fact that each time she had tried to discuss support with the father, he had reacted with anger and involved the parties' child in the ensuing arguments. A similar rationale was applied to excuse the mother's delay in B.(T.K.) v. S.(P.M.), 2008 BCSC 1350. See, however, Y.S. v. K.T., 2008 BCPC 101 (CanLII) (Prov. Ct.), where the mother's claim for retroactive child support was dismissed based in part on the court's view that, while the mother did not request support earlier due to a fear of the father challenging custody, there was no evidence that the father would have responded in such a manner. Further, in Webber v. Lane, 2008 ONCJ 672, the court limited the retroactive support award to three years prior to formal notice on the basis that while the recipient mother was young and had limited resources, she should have realized that the only way to deal with the payor's "stonewalling" was to pursue litigation. In Irving v. Clouthier, 2008 CanLII 48137 (Ont. Sup. Ct. J.), the court accepted in part the recipient mother's submission that her delay in varying support that was based on a 1997 order was based on financial hardship. However, in balancing this factor against the father's interest in certainty, the court limited the retroactive support award to 2003. In B.D.G. v. C.C.G., 2007 BCSC 989, the court rejected the mother's argument that her delay was justified by the physical and emotional consequences she had experienced as a result of an accident in which she was involved.

  • [29] Ibid. In Baldwin v. Funston, 2007 ONCA 381, where there had been an unexplained five and a half year delay in seeing increased child support, the Court of Appeal upheld the lower court's dismissal of the mother's retroactive child support claim. Other cases where insufficient "excuse" for delay was established by the recipient parent are: L.M. v. I.M., 2007 NLUFC 29; Stemmler v. May (2007), 43 R.F.L. (6th) 218 (Ont. Sup. Ct. J.); Luca v. Luca (2007), 43 R.F.L. (6th) 152 (Ont. Sup. Ct. J.); Robertson v. Robertson, 2007 NSSC 128; Lefebvre v. Strilchuck (2007), 281 D.L.R. (4th) 539 (Ont. Sup. Ct. J.); P.V. v. D.B., 2007 BCSC 237; I.A. v. G.R., 2007 NUCJ; and P.A.B. v. K.M.B., 2006 BCPC 575.

  • [30] Carole Curtis, "The D.B.S. Cases: The Supreme Court of Canada and Retroactive Child Support" (County of Carleton Law Association 16th Annual Institute of Family Law, 1 June 2007) at 15 [Carole Curtis].

  • [31] SRG, supra note 1 at para. 105.

  • [32] Ibid. at para. 106.

  • [33] Ibid. In the Post-SRG Survey, supra, note 26, blameworthy conduct was found in 65 cases. See, in particular, L. (R.E.) v. L. (S.M.), 2007 ABCA 169, where the payor father had failed to disclose increases in income notwithstanding that his financial situation had changed significantly in 2002; Schick v. Schick, supra note 28, where the payor father made statements to the mother that were intended to dissuade her from formally pursuing an increase in support, notwithstanding that he knew of the financial difficulty in the mother's household, and the fact that it directly affected the child's standard of living; Whelan v. O'Connor, 2008 NLCA, where the payor mother failed to disclose that her income had increased notwithstanding the existence of an order requiring disclosure; Chera v. Chera, 2008 BCCA 374, where the Court of Appeal held that the payor father's decision to avoid his obligation to pay support until a final court order was made did not abrogate his obligation to pay support for his children from the date of his separation from the recipient mother; and Waddle v. Carr, 2008 ABCA 31, where the payor father was put on written notice that the recipient mother had retained a lawyer to deal with support issues in 2005, but subsequently refused to cooperate with his own counsel to complete the required processes.

  • [34] SRG, supra note 1 at para. 108.

  • [35] Ibid.

  • [36] Ibid. at para. 109. See Morgan v. Morgan, 2006 BCSC 1197 where, though the father did fail to disclose his increased income, his behaviour fell on the lower end of the "blameworthy" scale because he had often paid more than required under the applicable support order, and had contributed to health care costs, clothing expenses, and extracurricular activities costs. See also Deane v. Pawluk, 2006 SKQB 499, where the payor father had assumed almost total responsibility for the children's extracurricular activities expenses; Albo v. Albo, 2006 ABQB 785, where the court held that the payor father reasonably believed that his support obligations were being met by providing a home for the recipient mother and the parties' children; and Baldwin v. Funston, supra note 30, where the father had virtually never refused the mother's requests for extra financial assistance.

  • [37] SRG, supra note 1 at paras. 110-113. In Fallis v. Garcia, supra note 28, the retroactive award would assist both children with their plans to attend post-secondary institutions. See also Andrews v. Megaw, 2008 CanLII 12709 (Ont. Sup. Ct. J.), and Kardaras v. Kardaras, 2008 ONCJ 493, where one of the parties' children had incurred debts of $12,000 to pay for post-secondary education. This debt would not have been incurred had proper support been paid when owed. In Schick v. Schick, supra note 28, the award would assist the child who had special needs. In Irving v. Clouthier, supra note 28, the court noted that the child of the marriage was in financial need and was not looked after while the payor's new family received the benefits of the payor's salary. Further, in Webber v. Lane, supra note 28, the court held that a retroactive support award would create more opportunity for the parties' child who, up to the point of the order, had experienced adversity due to the recipient mother's poverty and the payor's selfish actions in not meeting support obligations. Similar benefits would enure to the children in L.L. v. G.B., 2008 ABQB 536, who had faced financial hardship as a result of growing up without proper support.

  • [38] Ibid. at para. 113.

  • [39] Ibid. at para. 115. In Albo v. Albo, supra note 36, where the father's conduct was not found blameworthy and a retroactive award would be based on past income while his only current income was CPP benefits, undue hardship contributed to the dismissal of the mother's claim for retroactive child support. In Lemky v. Emblin, 2008 ABQB 383 (CanLII), the recipient mother's claim for retroactive support was dismissed, largely due to the undue hardship this would cause the father in light of the fact that his business was currently very slow and a retroactive award would be devastating to his financial situation. In Purba v. Purba, 2009 ABCA 3, where the appellant was able to demonstrate hardship the Court of Appeal ordered retroactive amounts should be paid at the rate of $100 per month until ongoing support for one of the children was paid off, at which point payments should increase to $300 per month until extinguished.

  • [40] Ibid. at 116. For a post-SRG case dealing with circumstances where blameworthy conduct outweighed concern for any hardship that father might possibly suffer as a result of paying retroactive support, see Petten v. Efford, 2007 NLUFC 3. Also, in Malleye v. Brereton, 2007 ONCJ 216, the court denied a retroactive decrease in support obligations, and held that while the payor parent might suffer undue hardship, his current unemployed status was self imposed. Further, any hardship could be mitigated through monthly, rather than lump sum, payments. See also Webber v. Lane, 2008 ONCJ 672. In Robertson v. Robertson, 2007 NSSC 128, the court held that the father's obligation to his daughter outweighed those to his new common law partner. Further, his support obligations trumped personal expenses associated with smoking, drinking, and driving a new vehicle. In McGouran v. Connelly, 2007 ONCA 578, the Court of Appeal held that the application judge erred in severely limiting the retroactive award against the payor father on the basis that it might impact on his ability to meet his ongoing obligations. The judge ought to have weighed the father's blameworthy conduct more heavily in her analysis.

  • [41] Justice Bastarache does not define "formal notice", but D. Smith suggests that a demand letter from counsel or the commencement of proceedings would constitute formal notice. See D. Smith, supra note 27 at 228.

  • [42] SRG, supra note 1 at para. 120.

  • [43] Ibid. at para. 122.

  • [44] Ibid. at paras. 161-162.

  • [45] Ibid. at paras. 123-124.

  • [46] Michael B. Kleinman, "Is there a " 3-Year Rule " in Retroactive Child Support?" (2007) 22 Money & Family Law 89 at 91.

  • [47] Supra note 1 at para.175.

  • [48] Ibid. at para. 169.

  • [49] Carole Curtis, supra note 30 at 21.

  • [50] During the OBA Panel, supra note 25, panelists (Carole Curtis, Phil Epstein and D. Smith) described slightly different understandings of the three-year limitation, but all agreed that Justice Bastarache did not intend to establish a "hard and fast" rule. See the suggestion in Armstrong v. Hill, 2009 BCSC 179, that retroactive awards should not reach more than three years before the date of effective notice.

  • [51] Kleinman, supra note 46 at 93-94. In the Post-SRG Survey, supra note 26, of the cases where retroactive support was awarded, 23 orders extended beyond a three-year period. Epstein and Madsen note that occasionally courts will go back more than three years: Phil Epstein and Lene Madsen, Epstein and Madsen's This Week in Family Law (8 January 2008) (WLeC). One example is Dickson v. Dickson, 2007 NBQB 221 (Q.B.), where the retroactive support order was granted for a four-year period. Here, the father had engaged in blameworthy conduct by failing to disclose increases in his income, and by intimidating the mother into refraining to take legal action to vary support obligations. See also Schick v. Schick, supra note 28, where retroactive support was ordered from 2002. Here, the payor father's income had increased significantly after a 2002 court order, and his blameworthy conduct had deterred the recipient mother from seeking an increase in support.

  • [52] Correspondence between Doug Moe and the author dated 7 December 2007.

  • [53] SRG, supra note 1 at para. 128.

  • [54] Ibid. at para. 130.

  • [55] D.B.S. v. S.R.G. and L.J.W. v. T.A.R.: SRG, ibid. at paras. 137-145.

  • [56] Henry v. Henry and Hiemstra v. Hiemstra: SRG, ibid. at paras. 147 and 153.

  • [57] Henry v. Henry; SRG, ibid. at para. 146-147.

  • [58] Hiemstra v. Hiemstra: SRG, ibid. at paras. 152-154.

  • [59] Several cases note the broad definition of "blameworthy" employed by Justice Bastarache—see, for example, Casals v. Casals, [2006] O.J. No. 5602 (Ct. J.) (QL).

  • [60] D. Smith, supra note 27 at 242-243.

  • [61] Ibid. at 236.

  • [62] Note that an application for a retroactive variation is different from an application to have arrears rescinded. In the former case, the payor claims that the amount owing for a past period is lower than the amount reflected in an order or agreement, due to the actual income, custodial situation or entitlement status during that period. In the latter situation, the payor acknowledges that the amount payable under an agreement or order was appropriate, but seeks to have a court order a lesser amount payable due to the payor's current inability to pay. In SRG, the Supreme Court indicated clearly that the principles set out in the case did not apply to rescission of arrears cases: SRG, supra note 1 at para. 1.

  • [63] D. Smith, supra note 27 at 236.

  • [64] See, for example, Jamieson v. Loureiro, 2008 BCSC 998 (Canlii), where the court reasoned at para. 136:

    Although the D.B.S.case dealt with a payee's application to account for increases in the payor's income, the underlying theory, in relation to child support guidelines, applies. In particular, the support obligation itself should fluctuate with the payor parent's income.

  • [65] D. Smith, supra note 27 at 237. One example of an unsuccessful case of a payor seeking retroactive variation is Vaughn v. Vaughn, 2007 ONCJ 21. Another is Malleye v Brereton, supra note 40. Vaughn illustrates the potential difficulty of separating the recission of arrears analysis from the retroactive variation analysis, and D. Smith notes that the post-SRG caselaw continues to blur the distinction: ibid. at 238-240.

  • [66] Telephone conversation between Mr. Epstein and the author—8 January 2008.

  • [67] Epstein and Madsen, supra note 51.

  • [68] Many of these suggestions are contained in Carole Curtis' article, supra note 30 at 33.

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