DBS v SRGEdit
Parents had three children in the course of their ten year common law relationship. The father had sole interim custody after separation but then the parties entered into an informal shared custody arrangement where neither party paid support. Three years later the mother brought an action in Alberta for retroactive and ongoing support. The chambers judge awarded her prospective support but not retroactive. The Court of Appeal allowed her appeal, but found no blameworthy conduct or willful failure to disclose on the part of the father.
LJW v TAREdit
Three children were born in the course of a common law relationship. After separation the children lived with the mother, and some months later the father paid $150 in child support pursuant to a maintenance agreement which was increased to $150/month following a consent order. The mother brought an action for retroactive support. The father had low income and high access costs and resisted the action. The chambers judge held retroactive support would constitute hardship.
Henry v HenryEdit
Parents married in 1984 and divorced in 1991. After separation the two children lived with their mother and a divorce judgment ordered the father to pay $700/month in child support. In 2000 the mother signaled an intention to request increased support. The father voluntarily increased his payments, but still below the table amount. The mother was unaware that his income had increased dramatically as they lived in different cities. At chambers, the judge granted her application for retroactive support based on the table amount, which was upheld by the Court of Appeal in a 2-1 judgment.
Hiemstra v HiemstraEdit
Parents divorced in 1996. The children lived with the father, then one of the children moved to lived with the mother. The father had a lot more income and the mother asked for an increase of support but the father rejected the request. The mother was hesitant to take the case to court because earlier proceedings had caused a rift between the mother and children. The chambers judge held that this was an appropriate circumstance for a retroactive award, and he calculated it from January 1, 2003 onward, to be paid in the amount of $500/month, as a "reasonable compromise" that best fit the situation of the parties. The Court of Appeal upheld the decision.
All of these proceedings were merged before the Supreme Court.
- Who is entitled to retroactive child support?
The appeals in DBS and TAR should be allowed and the decisions of the chambers judges restored. The appeals in Henry and Hiemstra should be dismissed.
Justice Bastarache, writing for the majority, held that children are entitled to child support from both parents commensurate with their income. To prevent liability for retroactive support, any changes in income should be reported to the custodial parent. If this is not done and an application is brought to enforce a change, four factors should be analysed to see if retroactive support is warranted:
- Undue delay: does the recipient have a reasonable excuse for not seeking support earlier?
- Any voluntary, intentional choice not to apply for an increase will militate against retroactive support. There is a balancing here; a child should not be punished for a poor choice of the parent.
- Was there blameworthy conduct on the part of the payor?
- This is interpreted broadly; anything that privileges the payor's interests over his/her children's right to an appropriate amount of support.
- Could the payor have reasonably believed that they were discharging their support obligations?
- The more significant a change in income, the more likely a court will find a payor's behaviour blameworthy if they do not proactively disclose.
- Need of child/benefit: would the child benefit from retroactive award based on their needs/circumstances?
- If a child's needs are being met by the current support, this will militate against a retroactive award.
- Would a retroactive award cause hardship to payor?
- This is a distinct element from the s. 10 undue hardship test.
- Alternative payment arrangements, such as paying a sum over a period of time, should be considered.
Turning to how far back retroactive payments should go, it turns on the conduct of the parents. If there was no blameworthy behaviour, the retroactivity should go to when the custodial parent informs the payor that they are seeking additional support. Generally there will be a limit of 3 years. For blameworthy parents, the retroactivity should continue to when the support should have changed and did not, without limit.
As to the amount of a retroactive payment, the court should follow the Guidelines, but the court has broad discretion to craft a remedy that would be fair having regard to all the circumstances, including hardship on the payor.
Applying this to the cases...
DBS v SRGEdit
This was an initial application for child support. The parents had a shared custody arrangement that thought that meant no child support was payable (see Contino v Leonelli-Contino). The incomes of the parents were relatively equal and due to the shared custody any money going to one household would simply be removed from the other. Due to the lack of blameworthy conduct and the lack of benefit to the children, no retroactive support was awarded.
LJW v TAREdit
The father from whom support was being sought was low income (~$23,000/year) and he was supporting a second family. Any retroactive award would cause his household hardship. The access costs for him were also high. Because of the lack of blameworthy conduct, the hardship a retroactive award would cause, and the fact that the standard of living in the custodial household was higher, no retroactive support was awarded.
Henry v HenryEdit
In this case, the mother had broached the subject with the father but could not afford a lawyer to fight the case. She was intimidated by her ex-husband and did not know much about his financial situation as he lived in another city. The husband had had a huge income increase and held it from her, as well as saying that she should have managed her money better to better provide for their kids and that he was paying all he could afford. Due to the large amount of blameworthy conduct and the large discrepancy in the amount he was paying and the table amount, the court awarded $100,000 in retroactive support.
Heimstra v HeimstraEdit
As in Henry, the parties had very different incomes; the father earned more than $100,000K/year, much more than the mother, and he gave no financial support when the need arose. The mother said she had not wanted to litigate because of the effect it had had on her daughter the last time they litigated. The court held that the delay of mother was not unreasonable, and the father had no reasonable grounds on which to believe the level of support he was paying was reasonable, and thus the award granted at trial was upheld.
Abella, dissenting in part, had three issues with the decision of Bastarache.
- The presumptive starting date of effective notice: the payor has the information on when their income changes, so it is impractical and unrealistic to expect the recipient to keep tabs on the payor’s income; the date should be when the income changes.
- The role of blameworthy conduct: the conduct of the payor should be immaterial; the whole obligation depends on the income increase, conduct of the parties is irrelevant.
- The three year cutoff: Abella finds this arbitrary - any cutoff of this type should be found in statute, not created by the courts.
- Retroactive child support orders should no longer be rare or difficult to obtain.
- Established the framework for assessing claims where there is a large, undisclosed swing in income.
- Can the payor say that they reasonably believed they were discharging their child support obligation?
- Children are entitled to support from both parents commensurate with their ability to pay.
This case is sometimes referred to as the "don't-ask-don't-tell" case, as the Federal Child Support Guidelines do not require payors to update their income information each year, merely that the paying parent make disclosure at least once a year upon request of recipient parent (s. 25).