Can Child Support Be Backdated?
Child support is the right of the child. Parents have an obligation to support their children in accordance with their income. This enables children to benefit from both parents just as they would if their parents had not separated. BC courts can order backdated child support if support is either not being paid or is being paid at less than the amount required based on the payor parent’s income pursuant to the Child Support Guidelines. As will be discussed in today’s post, backdated or “retroactive” child support awards are often made where a payor parent fails to disclose income increases.
Backdated Child Support Is Not “Exceptional Relief”
When a payor parent fails to pay the appropriate amount of child support, the recipient parent is often left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child may likely be disadvantaged. Both the recipient parent and the child may experience hardship because of a payor parent's financial neglect. Backdated child support is not exceptional relief. There is nothing exceptional about the court intervening to make an order providing relief from the consequences that can flow from payor parents' indifference to their child support obligations. A retroactive order simply holds payor parents to their existing—but unfulfilled—legal obligations to their child in accordance with the law.
Failure to Disclose Changes in Income
An unfortunate common strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of increases in income. The Child Support Guidelines calculate child support payments based solely on the payor parent's income unless it is a shared parenting arrangement. At any given time, the payor parent has the information required to determine the appropriate amount of child support owing while the recipient parent does not. The payor parent knows about the existence of a child support obligation and that the quantum of the obligation is based on their line 150 income which must be adjusted annually. A payor parent who knowingly avoids or diminishes his or her support obligation by not making full and accurate financial disclosure should not be allowed to profit from such conduct.
Is There a Limit on Backdated Child Support?
Any discussion of retroactive child support must look to two major decisions of the Supreme Court of Canada: the 2006 decision in DBS v. SRG, 2006 SCC 37 and the more recent decision in Michel v. Graydon, 2020 SCC 24. The 2006 decision set out the four factors- known as the DBS factors- a judge must consider when a parent makes a claim for retroactive child support :
- Whether there is a reasonable excuse for why support was not sought earlier;
- Blameworthy conduct by the payor parent;
- The circumstances of the child; and
- The existence of hardship for the payor parent.
The general rule following the D.B.S. decision was that there is a rough guideline limiting a retroactive claim to three years. Generally speaking, judges will not make an order for retroactive child support more than three years from the date of “effective notice”. Effective notice is the date on which the recipient parent notifies the payor parent that they are making a claim for retroactive support. Certainty is the rationale for awards going back no further than three years prior to when the payor parent received notice. The idea behind requiring some form of notice is fairness: it is about having and sharing accurate information so everyone can meet their legal obligations. Payor parents should be able to rely on the fact that the payments made in good faith and based on accurate information are meeting their legal obligations. Recipient parents should be able to rely on the fact that the amounts paid are what is owed.
Blameworthy Conduct Can Take a Retroactive Order Further Back
Blameworthy conduct on the part of the payor parent can weigh in favour of an award beyond 3 years. In the Supreme Court of Canada’s 2020 decision in Michel v. Graydon, the Court concluded that the date of the effective notice is not relevant when a payor parent has engaged in blameworthy conduct. In that case, the payor father failed to disclose material changes to his income for a period of 11 years. When the original child support order was made in 2001, the father knew it was based on an inaccurate picture of his income. The Court ordered retroactive child support of $23,000.
The father argued that it was inappropriate for the order to go back for the full 11-year period. The Court disagreed. The father misrepresented his income from the start so the court did not accept his argument that he did not have notice or that it was unfair for the support award to date back to 2001. As a result of the landmark decision in Michel v. Graydon, blameworthy conduct should be taken as an expansive concept. Anything that favours the payor parent to the detriment of the children is blameworthy conduct which overcomes the judicially imposed three-year rule put forward in DBS.
Contact Valerie M. Little for Advice on Retroactive Child Support
At Valerie M. Little Law Corporation, we have experience dealing with ongoing child support issues in addition to issues regarding retroactive child support. Valerie M. Little can answer your questions on any child support issue and can help determine how best to approach your child support issue. You can reach Valerie at 604-526-3333 or through the law firm contact form.