Retroactive child support and D.B.S v S.R.G

  • December 09, 2019
  • Robynne B. Kazina

Family law lawyers are routinely approached by clients seeking a retroactive increase in the amount of child support and those defending such claims. The Supreme Court of Canada in D.B.S. v S.R.G., [2006] 2 SCR 231, set out the test and legal principles to apply in determining whether retroactive orders should be granted.

In D.B.S. v S.R.G., the Supreme Court confirmed that retroactive child support orders are neither rare nor exceptional, and stated the following general principles:

  1. Child support is the right of the child and a parent cannot barter away a child’s right to support, as per Willick v Willick, [1994] 3 S.C.R 670. Parents have an obligation to support their children in an amount commensurate with their income, as required by the Child Support Guidelines. This obligation, and the child’s right to support, exist independently of any statute or court order.

Recipient and payor parents both have the responsibility to ensure the correct amount of child support is paid. While child support orders should provide payors with the benefit of predictability, and a degree of certainty in managing their affairs, such orders do not absolve payors or recipients of the responsibility to continually ensure that the child is receiving an appropriate amount of support.

  1. In determining whether to award retroactive child support, payors’ interests in certainty must be balanced with fairness to the child and the need for flexibility. All factors must be examined, including the reason the recipient delayed in seeking child support, the conduct of the payor, the past and present circumstances of the child, and whether the retroactive award might entail hardship for the payor.
  2. If the recipient is found to be entitled to a retroactive award, the general rule is that the award should go back to the date the recipient provided effective notice to the payor, but to no more than three years unless the payor has engaged in blameworthy conduct.

The outcomes of retroactive applications are highly dependent on the facts. There are important differences in cases where there is a prior order or agreement for child support and those where there are not. If there is an existing order or agreement, the payor will have been aware of his or her obligation to pay child support and that the amount should be adjusted with changes in the payor’s income. However, if there is no such order or agreement, the payor may not have known about his or her obligation to pay child support and may have had relied upon an informal agreement with the recipient for the sharing of expenses.

The two most common questions clients have about the test in D.B.S. v S.R.G. concern the date of effective notice and the sort of behaviour that constitutes blameworthy conduct.

Effective notice and actions taken by recipients

There is a wide interpretation of “effective notice” as any indication by the recipient that child support should be paid or that an existing child support obligation needs to be renegotiated. Effective notice does not require that legal action be taken; the recipient must only broach the subject with the payor.[1]

The rationale behind effective notice as the date of any retroactive adjustment is that it is the date on which the payor is presumed to have known that questions have been raised about the adequacy of his or her support payments. However, the recipient must also take steps after providing notice and not allow the issue to languish.[2]

If there is a prolonged period of inactivity by the recipient after giving notice, the payor’s interest in certainty may be used to defend the proposed adjustment. Inactivity may also undermine the recipient’s claim that an increased amount of support was required to meet the child’s needs.

However, recipients may be able to justify any inactivity where: they are fearful of the payor, have delayed filing an application as a result of family violence, or were unable to retain a lawyer as a result of limited financial resources.

Blameworthy conduct and payors’ behaviour

When the payor engages in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date for the adjustment of support rather than the date of effective notice. In such cases, it is possible for retroactive support to be ordered further back than three years.

D.B.S. v S.R.G. does not provide much clarity as to what constitutes “blameworthy conduct.” It defines blameworthy conduct in terms of the payor prioritizing his or her own interests over those of the child and the child’s right to an appropriate level of support. However, a number of cases since D.B.S. v S.R.G. have provided more insight into the types of behaviour that may constitute blameworthy conduct, including:

i) a payor hiding increases in income or job changes from the recipient, and failing to provide financial disclosure;[3]

ii) a payor trying to dissuade the recipient from bringing an application for support using pressure tactics or threats;[4] and

iii) a payor misleading the recipient into believing they are meeting their support obligation when they are not, including by misrepresenting their income.[5]

However, just as the behaviour of the payor parent may support a lengthy retroactive order, the payor’s behaviour may also mitigate against such an order. For example, if a payor voluntarily paid additional expenses for a child without a formal obligation to do so, a retroactive order may not be made or the amount may be reduced.

In summary, retroactive increases in child support will depend on the date a recipient provides effective notice to the payor and the conduct of the payor. Recipients ought to broach the subject as soon as reasonably possible and take steps to pursue the adjustment of child support. In order to avoid a finding of blameworthy conduct, payors should provide full financial disclosure and avoid intimidation tactics.

While the court held in D.B.S. v S.R.G. that child support is the right of the child, the actions of each parent can vary that entitlement. This can perhaps be explained by the court's desire for predictability and concern for undue hardship on the part of the payor.

Robynne B. Kazina is Partner at Taylor McCaffrey LLP in Winnipeg.