The MacLean family lawyers in Vancouver understand that changes in the circumstances of the child-support paying parent sometimes may justify a variation of child support. Most commonly, the “change of circumstance” is an increase or decrease in the payor’s income or a move of one or more children between homes. Our Vancouver family lawyers also realize that there are appropriate situations where the parent with custody may have a valid claim for retroactive child support, that is, with an effective date earlier than the date on which the order is pronounced, possibly a date earlier than the date on which the application to vary was delivered. While D.B.S. v. S.R.G., 2006 SCC 37 is the leading case on retroactive child support setting out the factors that must be considered (e.g. the notice given to the payor of the recipient’s intention to seek a variation of support, the explanation for the recipient’s delay in making the variation application, any misconduct on the part of the payor, such as non-disclosure or misleading disclosure, and any hardship suffered by the children), more recent cases illustrate how the D.B.S. factors will be applied.
Call our BC child support lawyers across BC toll free 1 877 602 9900 to find out if you should consider filing a variation application, including a request for retroactive child support. The longer you wait, the less likely you will obtain an order for retroactive support going as far back as you may need.
In the S.P.D. v. L.S.J., 2015 BCPC 0121, 14352 (Kamloops), the Honourable Judge S.D. Frame heard an application for retroactive child support and extraordinary expenses, and for a variance. The primary issues were whether the mother (with custody) was entitled to seek retroactive child support to 2009; what the father’s contributions ought to have been for whatever period of retroactivity was allowed, if any; and what his child support would be going forward. Notably, the court said:
[4] There is conflicting evidence about who set the agreed child support over time since separation. What is not in dispute is that both parties were represented by counsel in 2009 when they separated. The legal representation resulted in an agreement with respect to the division of assets. [Father] was not in any position to pay child support at the time and so, although [mother] sought child support in her claim, there was no agreement to pay it.
. . . .
[7] Absent some compelling reason, the appropriate date to determine retroactive child support is typically the date of filing the application. In this case, that would be July, 2014. Apart from the significant unfairness to [the] children, there is no compelling reason at law to adjust that date back to 2010. [Mother] ought to have made an application much sooner than she did, regardless of the information she was receiving from whatever sources. It is clear that both of the parties knew it was appropriate to adjust child support.
The Supreme Court of Canada set out the law pertaining to applications for retroactive variation of child support orders in its decision in D.B.S. v. S.R.G. 2006 SCC 37 (CanLII), [2006] S.C.J. No. 37. The concluding paragraph (135) of the court’s summary of the law sums up the difficulty with the problem posed by applications for retroactive child support, and the responsibility of parents to insure that they continue to support their children to the level that the children are entitled:
“The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them. Thus while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed. (Emphasis added).
Accordingly, back in the S.P.D. case, the Honourable Judge S.D. Frame concluded:
[9] The most that can be said in this case is that because of S.P.D.’s inconsistent and disrupted work history, the parties were largely resolving the issue of how much child support S.P.D. should be paying over time. It cannot be said that he withheld information. It cannot be said that L.S.J. operated under any misconceptions about his obligations to pay. It cannot be said that either party kept the other party uninformed. They discussed from time to time how much S.P.D. was to pay. Regardless of who set that amount, they were both aware of what his employment involved, how much he was paid, and how much he was obligated to pay. In circumstances such as that, L.S.J. ought to have made an application sooner when she realized S.P.D. was not going to pay the child support she expected him to pay. S.P.D. went into significant debt to his mother to pay his obligations including child support obligations. It was not a matter of him refusing to pay his appropriate amounts. S.P.D. now also has other children in his subsequent relationship.
The lesson here is that the conduct of the parties including inattention to the child’s needs vis-à-vis support and the other parent’s changing financial circumstances may result in the loss of retroactivity rights. Call our BC child support lawyers toll free 1 877 602 9900 immediately so we can help to ensure that your child benefits from the maximum amount of support available under the law, and in accordance with the other parent’s ability to pay.
