Case reference: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
Family law — Maintenance — Child support — Retroactive support — Whether court can make retroactive child support order — If so, in what circumstances is it appropriate to do so — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1, 17, 25.1 — Federal Child Support Guidelines, SOR/97175, ss. 1 to 4, 9, 10, 14, 25 — Parentage and Maintenance Act, R.S.A. 2000, c. P-1.
These four appeals raise the issue of retroactive child support. In D.B.S. v. S.R.G., the parents had three children in the course of their 10year common law relationship. Following their separation in 1998, the father had sole interim custody, but the parties subsequently entered into an informal shared custody arrangement. Neither party paid support to the other, although the father’s income substantially exceeded the mother’s. In 2003, the mother brought proceedings under Alberta’s Parentage and Maintenance Act for retroactive and ongoing support. The chambers judge awarded the mother prospective support but declined to make a retroactive award because their household incomes were at that time approximately the same and because the father had clearly contributed to the children’s support since the separation. Further, he was not satisfied that it would benefit the children to make such an award, and stated that retroactive support would be inappropriate in the circumstances. The Court of Appeal allowed the mother’s appeal, set out factors that a court should consider in deciding whether to make a retroactive award, and sent the matter back to the chambers judge for reconsideration.
In T.A.R. v. L.J.W., the parents also had three children in the course of their common law relationship. Following the parents’ separation in 1991, the children lived with the mother. Some months later, the father started paying support of $150 per month pursuant to a maintenance agreement, which was increased to $300 a month in April 2003 pursuant to a consent order. The mother is now married and her annual household income was approximately $50,000. The father was living in a common law relationship with a new spouse and her two children. He was earning $23,000 per annum. In June 2003, the court awarded child support in the amount of $465 per month. In dismissing the mother’s claim under Alberta’s Parentage and Maintenance Act for support retroactive to 1999, representing the difference between the child support paid and the $465 amount, the chambers judge considered the hardship such an award would cause, the father’s meagre income, the fact that he had honoured his support obligations and that he had incurred substantial expenses in exercising his access rights. The Court of Appeal held that the matter should be returned to the chambers judge to consider whether the burden of a retroactive award could be alleviated by a creative award and on whom the burden of the unfulfilled obligation should fall.
In Henry v. Henry, the parents married in 1984 and were divorced in 1991. After they separated their two children resided with the mother, and the divorce judgment ordered the father to pay $700 per month in child support. In February 2000, the mother signalled an intention to seek increased support. Although the father raised his support payments in 2000 and 2003, the amounts he paid were substantially below those set out in the Federal Child Support Guidelines (“Guidelines”). The mother was unaware that his income had increased dramatically since the divorce, while she was experiencing financial difficulties. The father had refused to provide financial assistance at various times when requested, responding to the mother with acrimony and intimidation. The mother applied to vary the child support payments in February 2003. The chambers judge granted her application for retroactive support, deciding that the award should be retroactive to July 1, 1997 and that it should be based on the father’s applicable Guidelines income. The majority of the Court of Appeal upheld the decision, but one judge dissented on the issue of the date to which the order should be made retroactive.
In Hiemstra v. Hiemstra, the parents were divorced in 1996. The two children of the marriage went to live with the father, and the mother paid child support. In November 2000, the son moved in with the mother and the child support payments ceased. Although the father had a substantial income, he did not comply with the mother’s April 2003 request that he contribute to their daughter’s college expenses. By February 2004, the mother was supporting both children; three months later, she applied for retroactive child support. The chambers judge held that this was an appropriate circumstance for a retroactive award, and he calculated it from January 1, 2003 onward, to be paid in the amount of $500 per month, as a “reasonable compromise” that best fit the situation of the parties. The Court of Appeal upheld the decision.
Held: The appeals in D.B.S. and T.A.R. should be allowed and the decisions of the chambers judges restored. The appeals in Henry and Hiemstra should be dismissed.
Per McLachlin C.J. and Bastarache, LeBel and Deschamps JJ.: Parents have an obligation to support their children in a manner commensurate with their income, and this obligation and the children’s concomitant right to support exist independently of any statute or court order. To determine whether a retroactive award would be appropriate, the court must first consider the prevailing legislation and child support scheme. To the extent that the federal scheme has eschewed a purely needbased analysis, this freestanding obligation implies that the total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, under that scheme, payor parents who do not increase their child support payments to correspond with their incomes will not have fulfilled their obligations to their children. However, provinces remain free to espouse a different paradigm. When an application for retroactive support is made, therefore, it will be incumbent upon the court to analyze the statutory scheme pursuant to which the application was brought.
The fact that the current child support scheme under both the Divorce Act and Alberta’s Parentage and Maintenance Act are applicationbased does not preclude courts from considering retroactive awards. While child support orders should provide payor parents with the benefit of predictability, and a degree of certainty in managing their affairs, such an order does not absolve the payor parent — or the recipient parent — of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining the parents’ obligations necessarily diminishes. In situations where payor parents are found to be deficient in their support obligations to their children, it will be open for the courts, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary the existing orders retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable. Similarly, a court may award retroactive support where there has been a previous agreement between the parents. Although such agreements should be given considerable weight, where circumstances have changed and the actual support obligations of the payor parent have not been met, the court may order a retroactive award so long as the applicable statutory regime permits it. Under the Divorce Act or the Parentage and Maintenance Act, courts also have the power to order original retroactive child support awards in appropriate circumstances. Lastly, where support, including retroactive support, is requested pursuant to the Parentage and Maintenance Act, a court will not have jurisdiction to order support if the child in question was over 18 at the time the application was made, or if certain expenses occurred more than two years in the past. Under the Divorce Act, a court will not be able to make a retroactive award if the child in question is no longer a “child of the marriage”, as defined in s. 2, when the application is made.
In determining whether to make a retroactive award, a court should strive for a holistic view of the matter and decide each case on the basis of its particular facts. The payor parent’s interest in certainty must be balanced with the need for fairness to the child and for flexibility. In doing this, the court should consider the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship. Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past. Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair. However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award. Finally, the court must ensure not only that the quantum of a retroactive support award is consistent with the statutory scheme under which it is operating, but also that it fits the circumstances.
In view of this analysis, the following dispositions should be made in the instant cases. In D.B.S., retroactive support is not justified. The two household incomes were roughly equal and there was no blameworthy conduct on the part of the payor father. More importantly, the chambers judge held that a retroactive award would be “inappropriate and inequitable” and would not benefit the children. In these circumstances, deference is owed to the chambers judge’s order. Similarly, in T.A.R., the chambers judge’s decision not to grant retroactive support also merits deference. He found that the father’s conduct was not deceitful or blameworthy and that he had honoured his obligation faithfully. Although the chambers judge did not consider all the factors, he took a holistic view of the matter and arrived at the conclusion that this was not an appropriate case to grant retroactive support.
In Henry, the retroactive award is affirmed. There was no unreasonable delay by the mother in applying for an increase in support. She broached the topic of increasing the father’s child support obligations to the best of her ability, given her ignorance of her exhusband’s actual income and the way he intimidated her. The father acted in a blameworthy manner: even though he was aware that his income had risen substantially since the original order was rendered and that his children were living at levels commensurate with his exwife’s low income, he refused to raise his payments to levels appropriate to his income. The chambers judge’s retroactive award would not impose too great a burden on the father, and the children should benefit from this award. The fact that the eldest child affected by the award was no longer a “child of the marriage” when the notice of motion for retroactive support was filed had no effect on the court’s jurisdiction to make a retroactive child support order under the Divorce Act. Because the exhusband did not disclose his increases in income to his exwife earlier, she was compelled to serve him with a notice to disclose in order to ascertain his income for the years relevant to this appeal. This procedure, contemplated in the Guidelines, sufficed to trigger the court’s jurisdiction under the Divorce Act. Since the procedure was completed prior to the time the eldest child ceased being a child of the marriage, it was appropriate for the court to make a retroactive order for this child.
Lastly, in Hiemstra, the chambers judge properly weighed the relevant considerations in deciding upon the award, and his retroactive order should be affirmed. Given the father’s substantial income, he cannot be considered blameless in not paying child support. He did not have a reasonable belief that his support obligation was being fulfilled. The chambers judge chose to make the award retroactive only to January 1, 2003, despite the father’s failure to provide child support for a longer period of time. As the date has not been crossappealed by the mother, it should not be disturbed.
Per Fish, Abella and Charron JJ.: Parents have a freestanding joint obligation to support their children based on their ability to do so, and this obligation creates a right in the child. Because the child’s right to support varies with changes in income, the child’s entitlement to a change in support should not be limited to the date of the recipient parent’s notice of an intention to enforce it. So long as the change in income warrants different child support from what is being paid, the presumptive starting point for the child’s entitlement is when the change occurred, not when it was disclosed or discovered. For payor parents, certainty and predictability are protected by the legal certainty that whenever their income changes materially, that is the moment their obligation changes automatically, even if enforcement of that increased obligation is not automatic. Since the existence of the increased support obligation depends on the existence of the increased income, there is no role for blameworthy conduct in determining the date at which children can recover the support to which they are entitled. The obligation fluctuates with parental income, not with parental misconduct. In the same way, the recipient parent need not demonstrate that the failure to pay child support has resulted in hardship for the child. A presumptive date of entitlement to a change in child support does not, however, eliminate the role of judicial discretion. It will be up to the court in each circumstance to determine whether the presumptive date has been rebutted. While undue hardship could militate against a retroactive order being made as of the date of the change of circumstances, there is no reason to deprive children of the support to which they are entitled by imposing an arbitrary threeyear judicial limitation period on the amount of child support that can be recovered. Such a clear restriction of a child’s entitlement is an unnecessary fettering of judicial discretion and requires an express statutory direction to that effect. Notwithstanding the differences in approach, there is agreement with the majority’s disposition of the four appeals.
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