Retroactive Child Support: Benefits and Burdens

1. How the Retroactive Support Question Came Before the Supreme Court of Canada

The Supreme Court of Canada's analysis applied specifically to four Alberta-based cases—three that had been combined by the Alberta Court of Appeal[3] and a fourth that the Supreme Court added.[4] In each case, the parent who was a recipient of child support was seeking an amount of support for a prior period—specifically, an amount that was in keeping with the support obligation attributable to the payor parent's income during that period.[5] The tricky feature of these claims was that the specific obligations sought to be enforced were not ones that had been spelled out by order or agreement—had this been the case, the relief sought would have been enforcement of arrears that had accrued over the years. Instead, as the Supreme Court said, the claims concerned "the enforceability and quantification of support that was neither paid nor claimed when it was supposedly due."[6]

In many cases, such claims will arise where support obligations have been settled pursuant to either an agreement or a court order,[7] and subsequently, the payor's income increases, but the support paid does not. As the Court recognized in SRG, "retroactive" is technically a misnomer in such circumstances—the payor is not being asked to comply with a legal obligation that did not exist in the past. Instead, the recipient is seeking to hold the payor accountable for the obligations that would have been associated with his or her income during the period in question had support been calculated afresh at that time. The ultimate issues for the court were whether it could order such "retroactive" support, and if so, under what circumstances it should do so.

It is useful to consider, prior to reviewing the court's analysis, the legislative backdrop to this question. An important shift in the characterization of child support obligations occurred in 1997 with amendments to the Divorce Act[8] and a corresponding introduction of the Federal Child Support Guidelines.[9] Under the current child support regime, assuming a post-separation situation where one parent has responsibility for the care of the children for the majority of the time while the children see their other parent for "access" visits, there is an assumption that the person with whom the children reside most of the time will automatically contribute to the children's well-being in accordance with his or her financial ability. The other parent's support obligation is calculated by using a table that dictates amounts owed for each income level. In other words, the payor's obligation is established by direct link to his or her income (along with the number of children for whom support is owed and the province of residence).[10] The monthly amount set out within the Guidelines table is said to approximate the proportion of one's income that could appropriately be transferred based on that person's ability to pay.

The method of calculation that sees support flowing directly from income levels represents a departure from the pre-Guidelines regime. Prior to the implementation of the Guidelines, support was determined by calculating children's needs based on budgets provided by parents and then assessing the proportion of the required amount that each parent should contribute. This proportionate share was based on each parent's financial ability.[11]

Another essential backdrop to understanding the Supreme Court's decision is the fact that neither the Divorce Act[12] nor the Guidelines[13] specifically dictate that a parent must increase his or her payments as income increases. The key provisions speaking to this question are contained within s. 25 of the Guidelines, which provides:

25. (1) Every spouse against whom a child support order has been made must, on the written request of the other spouse or the order assignee, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, provide that other spouse or the order assignee with

  • (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents;
  • (b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and
  • (c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship.

These subsections place an onus on the recipient spouse to request income disclosure from the payor spouse. One of the complicating factors in this analysis then, is whether, during any period that a recipient does not make such a request, and does not initiate subsequent proceedings (either through informal negotiations or court application) to alter support amounts in accordance with the new income information, the payor parent is entitled to assume that he or she need not adjust the support being paid for his or her children. And, when at some point the recipient spouse does make an application for changed support, to what extent should this "assumption" that nothing further was required of the payor parent impact the analysis?