Inventing Common Sense

At almost any Starbucks or even on the Clapman bus, any discussion on claims for retroactive child support would find an suspect audience. That's because they smack of opportunism: if the money was needed two years ago, why wasn't it asked for two years ago? Absent need, is the claim really a ploy to buttress or bargain for something else or, worse, retaliation between separated spouses?

Unfortunately for the general public, but fortunately in many cases where there has been an injustice or hiding of income, and a child cheated out of support, the Courts will entertain applications for back child support.

Retroactive child support is different from child support arrears.1 Arrears are easy to explain, even at Starbucks: you didn't pay your bill - pay-up!

But retroactive child support means that months or years after an alleged debt accrues, a debtor can chase down the payor and find that she or he has the backing of the justice apparatus.

retroactive child supportFor something like this to work, it takes a bit of legislative creativity. That's not a problem. The problem is that the creativity comes not from a legislative assembly but from a court of law necessarily confined to the facts at hand and not at all designed to set national policy or law.

Many years ago....

Every jurisdiction is different but in Canada, the issue came to a head in 2006. To that date, few if any Canadian jurisdictions had done the right thing and codified the law. How hard would it have been to simply say: "If a recipient has a claim for child support, she'd better make it when it materializes or it's gone!" or, perhaps, deferring to articulate words only a legal drafter would be capable of.

So it was left to the unelected Canada's Supreme Court to do so. Canada's Supreme Court is not known for simplifying the law. To wit, ask any lawyer what the law is for judicial review and that lawyer will have to look at his or her watch before answering.

But back to child support and July 31, 2006, the date DBS v SRG was released by the Supreme Court.

To set the stage, the federal Divorce Act does not come right out and say that claims for retroactive support are O.K. Needless to say, since lawyers must exist for a reason, this was once argued to preclude such a claim for retroactivity.

One case often cited is the 1997 decision of Darlington v Darlington where Justice Donald gave the judgment of the British Columbia Court of Appeal. Mr. Darlington argued that the Divorce Act provided no explicit authority for the making of a retroactive order. But Justice Donald (at ¶24) saw in a 1985 amendment to the statute:

"... no longer contains those words of limitation ... a court is now free to grant retroactive orders."

In DBS, the Court split - not in the result of endorsing retroactive child support application - but in the way they got there - so right there, confusion.

The majority decision was authored by the now-retired Justice Michel Bastarache but he had the endorsement of the chief justice Beverley McLachlin. Bastarache's heart, as a good civilist, was in the right place.

Really, the entire decision contains nuggets of law but the case can be summarized as follows.

Child support belongs to the child:

"¶60. No child support analysis should ever lose sight of the fact that support is the right of the child.

"Where one or both parents fail to vigilantly monitor child support payment amounts, the child should not be left to suffer without a remedy....

Michel Bastarache"A policy that is permissive of retroactive awards would be perfectly consistent with the rest of the child support system: parents are to be trusted with the responsibility of caring for their children, but courts are not to be discouraged from defending the rights of children when they have the opportunity to do so. Thus, while an application is a necessary trigger to the court’s jurisdiction, the court may still retain the power to make a retroactive order once it is properly seized of a matter."2

Support to fluctuate with a payor's income:

"¶54. (P)arents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order. ...

"(T)he total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, under the federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children."

Three-Year Limit

"¶123. it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent."

Blameworthy Conduct

"124.The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retro-activity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments."

Holistic View

"¶78. In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents....

"¶99. At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix."

Post DBS

Since DBS, the Courts have had a go at massaging the DBS principles.

One of the most notable additions was stated by Justice Truscott in Atkinson v. Decker, albeit poorly worded

"¶28. ... the principles in D.B.S. v. S.R.J. apply equally to arrears of special or extraordinary expenses and extracurricular costs."


In Ward v Lawrence, Madam Justice Theresa Forgeron reduced the DBS decision to four essential questions:

  1. "Was there a reasonable excuse for failing to file the variation application in a more expeditious fashion?
  2. "Did (the Payor) engage in blameworthy conduct?
  3. "What are (the child's) circumstances and will a retroactive order benefit her? (and)
  4. "Will (the Payor) experience hardship if a retroactive award is granted?"

Looking at #3, and far be it for us to second-guess the good madam justice of the Nova Scotia Supreme Court, but when would an order for more child support not benefit a child?

Most encouraging in this Pandora's Box of child support liability the Supreme Court thrust upon Canadians in 2006 with no mandate to legislate, are pronouncements such as this from the Ontario Court of Appeal in Crosbie v Crosbie, at ¶16:

"Retroactive increases in child support should be limited to three years except where there is a finding of disreputable conduct by the payor spouse."

The New Frontier

It continues to be a rough ride in retroactive child support applications. Like far too many areas of family law, the omission of legislative assemblies to lead or codify this essential  law has led to a morass of judge-made law and the inevitable consequences of judicial discretion: blameworthy conduct ... holistic view.... great weight to ....

In the result, litigants can't be sure of the law as it pertains to their circumstances although if the simple words in Crosbie take root, there's hope yet.