As Calgary Vancouver Retroactive Child Support Lawyers we have previously stated, certain principles of the payment of child support are clear, being that child support is:
- the right of the child to receive (which cannot be bargained away by their parents);
- the duty of both parents to pay (according to their income), and;
- should not be avoided on a legal technicality.
Calgary Vancouver Retroactive Child Support Lawyers -Limits to Child Support
But Courts have previously determined there may be reasons to put some limits to the payment of child support, both retroactively and on-going. For the past 15 years the leading authority in determining retroactive child support has been the Supreme Court of Canada case of DBS v. SRG (2006 SCC 37), which held that generally a claim for child support can go back at least three (3) years from the time of Application, but that four (4) specific factors must be considered to determine whether (and then how much) retroactive child support should be paid, including: delay by the recipient parent; blameworthy conduct by the payor parent; undue hardship on the payor parent, and; the circumstances of the child(ren).
In 2020, the Supreme Court of Canada (in the cases of Michel and Colucci) took a fresh look at and clarified the (previously somewhat vague and confusing) principles to be applied in applications seeking retroactive child support, by either the recipient or payor parent (see: Winning Retroactive Child Support Strategies – ).
But Supreme Court of Canada decisions often take a very broad and theoretical approach to answering legal questions and principles. Fortunately, more recently, the Alberta Court of Appeal in Henderson v. Micetich (2021 ABCA 103) took the opportunity to make specific comments on these factors, specifically:
Delay – Calgary Vancouver Retroactive Child Support Lawyers 604 602 9000
DBS stated that delay in seeking child support by the recipient parent is not “presumptively justifiable”. In Michel, the Supreme Court of Canada held there may be many legitimate reasons for the recipient parent’s delay in applying for retroactive child support, including broader societal and “access to justice” issues such as: gender inequality; cost of litigation and access to financial information, and; social and economic issues (including domestic violence – see: Stopping Family Violence and Coercive Control ). In Henderson, the Alberta Court of Appeal had an opportunity to comment and expand on these societal and “access to justice” issues for recipient parents seeking retroactive child support, stating (at para. 41-42):
“Since (DBS) courts have approached the issue of “delay” differently. Most recently, in Michel, the Supreme Court recognized there are many reasons for a delay on the part of the recipient parent for bringing an application for increased child support… In her concurring judgment in Michel, Martin J spoke of delay in this broader social context, considering issues such as intimate partner violence and access to justice. She noted that delay is not itself “inherently unreasonable”.
We agree. In the absence of a clear agreement or court order that waives disclosure requirements or provides for another mechanism to calculate child support, delay will rarely substantially prejudice a payor parent …”
Blameworthy Conduct 604 602 9000
DBS stated (at para. 106) that delay in seeking child support by the recipient parent (while not “presumptively justifiable”) could be justified if the payor parent did (or did not) do something to prevent the recipient parent from seeking child support (the most common example being the failure to provide financial information when requested). In Michel, the Supreme Court took a more expansive and objective approach to blameworthy conduct, looking at the consequences of the payor parent’s conduct and whether that conduct had the effect of “privileging [their] interests over the child’s right to support” (at para. 118). In Henderson, the Alberta Court of Appeal stated (at para. 57):
“Blameworthy conduct in its expansive form is anything that favors the payor to the detriment of the children. It is generally used to overcome the judicially imposed three-year rule put forward in DBS. However, as a concept it has limited utility. A retroactive award ought not to be punitive, but rather restorative, providing benefit to the recipient parent and the children. Thus, while blameworthy conduct can militate in favor of an award beyond three years, its absence should not be found to militate against the making of any retroactive order at all.”
Undue Hardship 604 602 9000
DBS also said you must look at whether the payor parent would suffer hardship if required to pay retroactive child support (especially in a lump-sum). In Michel, the Supreme Court said you not only have to look at the ability of the payor parent to pay retroactive child support, but also the “bad faith” conduct of the payor parent which led to the need for a retroactive payment (ie. lack of financial disclosure; not making voluntary payments of support; taking little steps to reduce support obligations, etc.) (at para. 124-125). In Henderson, the Alberta Court of Appeal said you don’t only have to look at the hardship to the payor parent, but also hardship to the recipient parent and the child as a result of the lack of sufficient support, stating (at para. 70):
“The claim of hardship must be tangible and supported by evidence, and the hardship must be undue. There is often financial difficulty when an immediate lump sum cash payment is awarded. However, without more, it is neither undue nor unfair. An assessment of hardship requires the court to have regard to unfairness created in all the circumstances, including hardship to the payor, the recipient, and the child. It is incumbent on courts to recognize that failure to provide a retroactive award will have the effect of depriving children of payments to which they are entitled. Moreover, the analysis must recognize who has benefitted from failing to fulfill the obligation in the meantime; usually that would be the payor. Hardship is a broad concept and a legitimate concern, but the focus cannot be exclusively on the payor…”
Circumstances of the Child
Finally, DBS said you must look at the past and present circumstances of the child, and whether the child suffered hardship because of not receiving child support. In Michel, the Supreme Court said for many reasons (ie. principles of child support, best interests of the child, social and “access to justice” reasons, etc.), Courts should avoid creating any incentive whatsoever (ie. legal technicalities) for payor parents to avoid meeting their child support obligations (at para. 17) – instead, Courts should take a “fair, large and liberal” approach to retroactive child support applications. In Henderson, the Alberta Court of Appeal indicated there is no requirement to prove any need for support on the part of the child (ie. where the recipient parent, or their new spouse, has a high income), stating (at para. 58):
“Given that child support is the right of the child and the children should be the proper focus of any inquiry on retroactive support, it is interesting that this factor appears third on the list, after the payee’s delay and the payor’s conduct are considered. The purpose of the inquiry is to determine how the failure to pay adequate child support has affected the children. This Court has noted, in Goulding and Brear, that the right to support is the right of the child and parents cannot bargain it away. The court must address support from a child-centred approach, recognizing that it is the child’s right.”
It is commonly understood that the recent Supreme Court of Canada cases of Michel and Colucci have set a new framework for determining retroactive child support on behalf of both the payor and recipient parent, giving a ‘judicial refresh’ to the now dated approach on these factors set out in the original SCC case of DBS. This new framework is designed to take a more holistic (“fair, large and liberal”) approach to retroactive child support by taking into account numerous contemporary factors (including socio-economic and “access to justice” issues) and is to take a more “child-centred” approach. The more recent Alberta Court of Appeal case of Henderson v. Micetick confirms and applies this new approach and framework.
But at the end of the day the law has always been clear. Child support: the right of the child to receive, and: the duty of both parents to pay, according to their abilities.
If you have questions for our Calgary Vancouver Retroactive Child Support Lawyers, contact us across BC and in Calgary today as delay negatively impacts the claim.