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Posted on March 1st 2009 in Family Law

Child Support Payments: How Far Back Will They Go?

The Ontario Court of Appeal recently released a decision dealing with the issue of a payor father who failed to notify the mother, in a timely fashion, of a substantial increase in his income.

Chronology of Events
After nine years of marriage and three children, the parties divorced in 1998. The mother was granted custody and was awarded child support. The divorce judgement required the parties to make annual disclosure of their income and to adjust the child support accordingly.

In August 2000, the father took a job in England. Although the father was now earning in excess of $300,000, he failed to disclose this to the mother. In 2002, the mother twice requested information about his income. She was eventually forced to bring a motion for contempt in 2004.

When at last the father made the required disclosure, the amount of support was adjusted to reflect his higher income. The award was retroactive, but only to January 1, 2003 rather than to 2000, the date the father’s income increased.

While the judge hearing the case did not want to condone the father’s behaviour, she concluded that going back any further would place too great a financial burden on the father, such that it might impact his ability to meet the ongoing child support obligation. The mother appealed.

In deciding whether an award should be retroactive, the Supreme Court of Canada has set out four factors to be considered. None of the factors is determinative, rather the judge hearing the case should consider the particular facts of each situation.
1. Was the bringing of the application for child support by the recipient parent unreasonably delayed?
The court must look to the reason for the delay. However, since the right to child support is the right of the child, any delay by the recipient parent is just one factor to be considered.

2. The conduct of the payor parent.
The court is interested in whether the payor parent has acted in a blameworthy manner, thus contributing to the delay by the recipient parent.

3. The circumstances of the child.
The court should consider the child’s needs both at the time the support should have been paid as well as at the time the application was actually brought.

4. Any hardship that may be occasioned by a retroactive award.
The hardship in this case is the hardship that the payor parent may suffer if ordered to make a large retroactive payment.

How Far Back?
The Supreme Court of Canada has stated that the fairest retroactive date is the date when “effective notice” was given by the recipient parent to the payor parent that child support needed to be renegotiated. For the notice to be “effective”, the recipient parent need only broach the subject with the other parent. However, if the payor parent does nothing, it is incumbent upon the recipient parent to pursue the matter further.

Unless, the payor parent has withheld information about a material change in his or her circumstances, an increase in income for instance, it will be inappropriate to order retroactive payments more than three years prior to the “effective notice” date.

The Decision
It was the opinion of the Ontario Court of Appeal that the father’s conduct concerning requests for his current income was highly blameworthy. As such, the conduct weighed heavily “in favour of awarding very significant, if not full retroactive child support.” The result was that the appellate court set aside the lower court’s decision and ordered a new hearing.

If you have questions about child support or another family matter contact Nicola Savin or Jacqueline Peeters from our firm.