The obligation to pay child support is mandated by both the Divorce Act and Alberta’s Family Law Act. These statutes establish that natural parents and those who stand in place of the parents have an obligation to provide monetary support for any children after the parents separate.
While child support should commence once the parties are living separate and apart, there are times when this does not occur. In the absence of voluntary payments, there are many reasons why an Applicant may not quickly attend at Court to ask for child support. In some cases the Applicant feels intimidated and may be worried about the repercussions of applying to the Court for support. In other cases, the parties may have separated amicably and simply agreed to no formal child support being paid. Separated couples often make their own arrangements without being fully aware of what each party’s obligations are under the law. Lastly, situations can arise where the payor was paying child support initially, has subsequently had several increases in income (which may warrant a high amount of child support) but is not paying the increased amount.
Retroactive child support can become a significant burden for both the payor and recipient. Several months or years of underpayment or nonpayment of child support impacts the recipient in that his or her household has to endure a reduced standard of living without receiving proper support. At the same time, the payor has likely become accustomed to not paying any child support or a reduced amount of child support. As time passes the amount of retroactive child support owing can add up to a large amount.
The leading case pertaining to retroactive support was set out in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra,  2 SCR 231, 2006 SCC 37 (CanLII) (hereafter referred to as (“D.B.S.”).
The D.B.S. decision involved four different cases, all of which raised the issue of retroactive support, and all of which were heard and decided together by the Supreme Court of Canada. In a lengthy decision, the Supreme Court set out a framework for retroactive child support that balanced both the interests of the recipient of child support, being certainty and predictability, with the need for fairness and flexibility for the payor. In this way, the Court determined that it is the responsibility of both parents to ensure the proper amount of child support is being paid from month to month and year to year. The Court determined that the payor spouse has an obligation to disclose his or her income and any increase in income, and a positive duty to increase their support when their income increases. Likewise, the recipient of support has an obligation to actively pursue the child support that their children are entitled to.
The framework arrived at by the Supreme Court in D.B.S. was lengthy and relatively complex. The 3 stage approach can generally be summed up as follows:
- Courts must first determine if a retroactive child support award is appropriate, given the circumstances of the case. Here the Courts will consider the reasons the recipient parent delayed in seeking child support, the conduct of the payor parent, and any hardship imposed by a prospective retroactive award on the payor parent;
- If it is determined a retroactive award is appropriate, the Court will next look at what period the award should cover, or put more simply, how far back the award should go. The presumption is that once the payee spouse has provided effective notice, either formally or informally, that is when he or she informed the payor spouse of their intention to seek child support, the Court will look back three years from the time of that notice. In other words, it will usually be inappropriate to make a support award more than three years before notice was given to the payor parent. Factors such as blameworthy conduct, and intimidation by the payor, or refusal to disclose updated income information, can be factors that extend the three year period further back in time;
- Lastly, the Courts will look at the amount to be paid, or quantum. This is done using the applicable legislation and the Federal or Provincial Child Support Guidelines. The Court will then look at the total amount of retroactive child support payable and adjust accordingly to ensure overall fairness and compliance.
There are several important things for both the payor and recipient to consider when dealing with child support. First, as a payor, it is important to disclose your actual income on an annual basis, and pay the appropriate amount according to the Child Support Guidelines. Voluntarily doing so will avoid the need for litigation and preclude the payor parent from incurring a lump sum award against him or her for past payments either underpaid or missed.
Likewise, for the recipient spouse, it is important to regularly inquire about the payor’s income and to provide notice of the intention to seek child support as early as possible after the parties separate. Failure to do so may be a factor in reducing a retroactive child support claim. Importantly, the recipient spouse should not feel intimidated or scared to ask for child support. Child support is the right of the child and it is the recipient parent’s responsibility to attempt to seek it from the payor spouse.
In any situation involving the issue of child support, it is important for both spouses to understand their respective rights and obligations, and obtaining the services of a family law lawyer can be extremely helpful in this regard. A family law lawyer can clarify the law, and if necessary, apply to the court to have child support properly computed and enforced.