By: Jennifer Blackwood
Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. Please contact the Law Office of Jeff Jiehui Li, or another experienced family lawyer if you are concerned about your family law issues.
Child support is the right of the child and it is the responsibility of both parents to ensure that their children are receiving a proper amount of support. Seeking retroactive child support does not impose an obligation that the parent did not already have. It serves to enforce an obligation that should have already been fulfilled.
Courts must strike a balance between the payor parent’s interest in certainty and fairness to his or her children. A payor parent will have their interest protected only up to the point when that interest becomes unreasonable. Typically, that interest will be reasonable up to the point when the recipient parent raises the subject, up to three years in the past.
The leading case on retroactive child support is “DBS”, [2006] S.C.J. No. 37, 2006 SCC 37 (S.C.C). In that case, the Supreme Court of Canada outlined four factors regarding whether to award retroactive child support
Delay by the recipient parent in seeking child support is not presumptively justifiable, however, courts must be sensitive to practical concerns. For example:
- fears that the payor parent may react vindictively;
absence of financial or emotional means to bring an application; and- not receiving adequate legal advice.
2. Blameworthy Conduct of the Payor Parent
Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. A payor parent cannot intimidate a recipient parent or hide income level increases to avoid larger child support payments. Even where a payor parent does nothing active to avoid his or her obligations, he or she might still be acting in a blameworthy manner if he or she is consciously ignorant.
3. Circumstances of the Child
After separation, a child’s standard of living should remain as close as possible to the standard he or she enjoyed while his or her parents were together. Courts consider all circumstances, before and after, in determining the child’s needs at the time the support should have been paid. For example, whether the child underwent hardship.
4. Hardship Occasioned by a Retroactive Award
Retroactive awards can cause hardship where a prospective award may not since the quantum of the award is usually based on past income rather than present income. Payor parents may have other family obligations to meet that may cause hardship for a payor parent’s other child(ren). Courts attempt to craft the retroactive award in a way that minimizes hardship.
The issues of retroactive child support can be complicated. If you need assistance with your family law issues from a solutions-driven firm that is experienced in resolving family disputes efficiently, feel free to contact our office at (416) 800-7196.