Retroactive Child Support
When will an application for a retroactive child support award be granted?
They are cases we hear often: “my ex stopped paying child support” or “I can no longer afford my child support payments”. As child support is implicitly the right of the child, an application can be made to the court to collect on amounts that are owed or to update the amount owing to reflect a change in income. However, it is not as simple as calculating the amount that should have been paid and subtracting it from the amount actually paid. Instead, as the Supreme Court of Canada reaffirmed in Colucci v. Colucci, 2021 SCC 24 three interests must be balanced to achieve a fair result:
i. The child’s interest in receiving the appropriate amount of support to which they are entitled;
ii. The interest of the parties and the child in certainty and predictability; and
iii. The need for flexibility to ensure a just result in light of fluctuations in the payor’s income.
Child support under the Divorce Act is tied to the payor’s income. This means, that at times, child support orders must be varied to reflect support payments based on updated income information. Section 17 of the Divorce Act allows parties to make an application to vary child support, including retroactively. While the recipient of child support can apply for an increase in support, the payor may also apply for a decrease or to rescind or suspend arrears.
Any applicant seeking a retroactive variation under section 17 of the Divorce Act must first establish a change in circumstances, most commonly a change in income. Once this threshold has been met, a presumption is triggered that support will be varied back to the date of “effective notice” (up to three years before formal notice). The definition of effective notice differs based on whether it is the payor or the recipient of child support who is giving notice. Where the recipient seeks a retroactive increase, effective notice is deemed given to the payor if the topic of a potential increase is broached with the payor. On the other hand, when the payor seeks a retroactive decrease, the Supreme Court stipulates they must give the recipient “reasonable proof” that allows the recipient to “independently assess the situation in a meaningful way and respond appropriately”. The bar is higher for the payor to give effective notice because the they have an informational advantage concerning their income and any changes to it.
Once effective notice is given, the applicant should then proceed with steps to move things along. To encourage this, the court determined that retroactive awards should generally extend no further than three (3) years before the date of “formal notice” (i.e. an application to the court).
If an applicant wants the court to look back further than three (3) years from when formal notice was provided, there is an additional test. In applying the factors outlined in the Supreme Court of Canada decision of D.B.S. v. S.R.G., 2006 SCC 37, the court must determine if they should depart from the presumptive date of retroactivity to establish a fair result. These factors include:
i. The recipient’s delay in seeking retroactive support;
ii. The payor’s conduct;
iii. The child’s circumstances; and
iv. Hardship entailed by a retroactive award.
Applying the D.B.S. factors allows a court to balance the interests of the child, the payor and the recipient. A recipient with an understandable reason for a delay in seeking retroactive support, a payor’s blameworthy conduct, and or a child who is in need may result in a departure to a date prior to the presumptive date of retroactivity. A payor who establishes hardship based on proper evidence may avoid a period of retroactivity beyond the presumptive date.
Once the court has determined that support should be retroactively adjusted to a particular date, the amount of the award must be determined in accordance with the Child Support Guidelines. Full and robust financial disclosure is necessary to quantify this amount.
An application for retroactive child support is a complicated process based on the many factors outlined above. Contact our experienced lawyers at Wise Scheible Barkauskas if you have any questions about a retroactive child support application.