Vancouver and Kelowna Retroactive Child Support Arrears Law Update

As highly rated BC family and divorce lawyers we handle dozens of retroactive child support variation and arrears calculation cases. If you have an issue call us across BC toll free at 1 877 602 9900. We act for both payers and recipients as we feel it is only fair to apply the law for the benefit of both sides of this emotion laden issue. The recent retroactive BC child support guidelines decision in Armstrong reviewed the latest Supreme Court of Canada and BC Court of Appeal retroactive child support case precedents and in nutshell they are:

Legal Principles

[4] Recently the Court of Appeal in Semancik v. Saunders, 2011 BCCA 264, reviewed retroactive support with the following comments:

[39] In D.B.S., the Court’s analysis of the justification for and principles applicable to retroactive child support awards proceeded from the “core principles [that] animate the support obligations that parents have towards their children” (at para. 38):

They include: child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.

[40] Parents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the child’s corresponding right to support, exists independent of any statute or court order (at para. 54). It is the responsibility of both parents to ensure that the payor parent fulfils his or her actual obligation. Where they fail in this obligation, a court may order an award that recognizes and corrects this failure. Such an award is in no way arbitrary for the payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already (at para. 68).

[41] A retroactive award is not always appropriate. Such an award may provide the child with no discernible benefit, or may cause hardship to the payor parent (at para. 95). A retroactive award can impair the balance between certainty and flexibility in this area of the law (at para. 96), but such an award is not to be regarded as exceptional. “It cannot only be exceptional that children are returned the support they were rightly due” (at para. 97).

[42] In D.B.S., Bastarache J. for the majority of the Supreme Court set out four factors to be considered in determining whether a retroactive award is appropriate: whether the recipient parent has a reasonable excuse for why support was not sought earlier; blameworthy conduct of the payor parent; the circumstances of the child; and whether any hardship would be caused by a retroactive award (at paras. 100-116).

[43] Once a court determines that a retroactive child support award should be ordered, it must decide the amount of that award. One of the elements of that decision is the date to which the award should be retroactive (at para. 117). That date is the date when “effective notice” was given to the payor parent that child support or s. 7 expenses need to be paid. Effective notice does not require the recipient parent to take any legal action; “all that is required is that the topic be broached” (at para. 121).

[5] The principles applicable to claims for retroactive support are set out in D.B.S. v. S.R.G., 2006 SCC 37. Mister Justice Bastarache wrote as follows:

5.2.2.3 Awarding Retroactive Support Where There Has Not Already Been a Court Order for Child Support to Be Paid

80 Unlike the previous two situations, in this third one, the status quo does not involve any existing payment of child support. This fact immediately differentiates the present context in a very important way: absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. The non-custodial parent’s interest in certainty is generally not very compelling here.

81 Jurisdiction to award retroactive child support in this circumstance is found in s. 15.1 of the Divorce Act and s. 16 of the Parentage and Maintenance Act. In the Alberta statute, the legislature simply decrees that an order may be made for payments for the maintenance of the child. Similarly, in the Divorce Act, Parliament allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage”: s. 15.1(1). There is therefore no restriction in either statute as to the date from which the court may order that the award take effect.

82 In my view, the legislatures left it open for courts to enforce obligations that predate the order itself. This interpretation is consistent with the Guidelines, which are meant to “establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation” (s. 1(a)). So long as the court is only enforcing an obligation that existed at the relevant time, and is therefore not making a retroactive order in the true sense, I see no reason why courts should be denied the option of making this sort of award.

[Emphasis in original.]

[6] The foregoing establishes it is unreasonable for a noncustodial spouse to believe that he or she was living up to his or her obligations where no attempt was made to meet those obligations to a child. This is so even where no child support order has been made by the court. Accordingly, as stated at para. 82, the obligation is not strictly speaking retroactive support.

[7] The Court then moved on to discuss the factors to determine whether retroactive child support should be ordered. They include 1) a reasonable excuse for why support was not sought earlier; 2) conduct of the payor parent; 3) the circumstances of the child; and 4) hardship occasioned by a retroactive award. None of these factors by itself is decisive (para. 99).

[8] The Court had this to say about the conduct of the payor parent at para. 108:

108 On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.

[9] In Price v. Price, 2010 BCCA 452, Chief Justice Finch also discussed blameworthy conduct as follows:

[22] Blameworthy conduct as a factor for retroactivity was discussed in D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, 2006 SCC 37. The Court said at para. 107:

Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct. [Emphasis added.]

And at para. 108:

a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. [Emphasis added.]

[23] The nature and degree of the defendant’s conduct required a fact-intensive inquiry. The judge appears to have accepted the defendant’s position that although his representations as to his income were not in accord with the requirements of the Child Support Guidelines he relied on his accountant’s advice as to what his income was. The judge said there was nothing “nefarious” in his conduct, “… unless one is of the opinion that he had a rather sharp eye to what he considered to be his financial obligations to his children”. The statement that the defendant’s conduct was not nefarious I take to mean that the judge did not find the defendant to have been deliberately dishonest or deceptive. His speculation that he may have had a “sharp eye” as to his obligations, I understand to mean that he may have been astute to pay no more than was required by law.

We are here to help you regardless of wheher you need help collecting unpaid support or reducing “phantom” arrears that built up during a time when you were unable to pay the original support amount. Call or email us today.