The Supreme Court of Canada has now ruled on 4 cases from the Court of Appeal of Alberta dealing with the issue of retroactive child support under the Divorce Act.

The court reinforced its prior decisions endorsing the notion that child support is the child’s right. The obligation of the child’s parents is an abiding one which arises during cohabitation and continues as well after a separation.

This leads to the conclusion that, even if there is a court order or agreement covering child support, if that agreement or order was not based on accurate information or if subsequent changes in the payor’s income occur, which would if known and adjudicated lead to a different result, the courts have the power to enforce payments of the "correct" amounts.

Child support obligations are determined by direct reference to The Child Support Guidelines. In the vast majority of cases the court is concerned with two numbers only, namely, the payor’s income and the number of children to be supported. This is the case both under the divorce and our province’s legislation that covers the separated whether married or common law/same sex.

The payor knows his/her income so there should be no mystery at any given time what the relevant provincial Tables of the Child Support Guidelines requires. The payor’s duty is to disclose significant changes whether or not that disclosure is demanded.

The payor, who has peculiar knowledge of his/her income will find no certain refuge behind a court order or agreement. That parent will be deemed to know that his/her obligation to disclose this relevant financial information as ordered or as requested will trigger enforcement of the child’s right to the required amount of support.

Once disclosure of the change is made, the onus to apply falls to the recipient, but even significant delay may not extinguish the obligation.

Absent misconduct by the payor, the court has determined that it would arbitrarily limit these retroactive periods to three years. Misconduct on the payor’s part would allow for the earliest date. The court’s language is:

I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.

Given the potential hardship considerations (perhaps the payor’s income has gone down and he/she cannot pay the arrears) which might militate against an order, the court will take a holistic approach and likely consider recovery of the arrears over time.

Because the right is that of the child, parental misconduct or negligence -- the payor’s in hiding the true facts or being difficult in handing over financial information, and the payee’s in failing to apply to court in a timely fashion -- are not sufficient reasons to deprive the child of what he or she was entitled at the time. While the payee has an obligation to act reasonably upon receipt of the new information, formal notice or court proceedings are not required, the subject need only be "broached". The court explicitly recognized that often the payee will be fearful of "rocking the boat" by demanding updated child support. The Court said that the payee might be excused:

…where the parent harboured justifiable fear that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application.

On separation, the parental duty to support exists and enforcement of it does not require that the recipient rush off to court, sign a hasty agreement or worry that the time spent in negotiations that might fail will not be a bar to obtaining the proper support for that period before the matter is settled or goes to court.

Even without blame in the picture, the court ruled that a payor parent "has the obligation to increase his/her child support payments when his/her income rises".

The court found that the obligation to support one’s children trumped the relative certainty of knowing one’s obligations and being able to responsibly meet them. While the payor can take some comfort in attending to the terms of a court order or proper agreement, the court can require that the amount which would have been payable subsequent to the order or agreement had all the facts been known should be paid, notwithstanding that there was full compliance with the provisions of the court order or agreement. The parent’s need and right to have certainty cannot result in unfairness to the child.

This is a dramatic departure from one of the longstanding principles of the common law of Canada, namely, that notice of a claim is usually required to be clear and often formal before rights accrue pursuant to it.

To obtain child support from the Court, an application must be made and (in the vast majority of cases) notice of the claim served upon the other parent. That remains the procedure in most other family and civil law cases in general.

While an application will still have to come before the court, in child support cases now "all that is required is that the topic be broached" to trigger the payor’s obligations to accrue for later enforcement.

Generally, the commencement date for enforceability purposes will be the date upon which the payee parent gives notice (and this does not need to be formal) of need or requests financial information to make that determination:

I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.

In the case of agreements which have not been incorporated into court orders, the court reasoned that the expectation that compliance with the agreement should be sufficient does not bear the same weight as with a court order: 

Similarly, a court may award retroactive support where there has been a previous agreement between the parents. Although such agreements should be given considerable weight, where circumstances have changed and the actual support obligations of the payor parent have not been met, the court may order a retroactive award so long as the applicable statutory regime permits it.

Not every case will result in a retroactive award and the court must balance the issues of unfairness, conduct of the parent, the past and presence circumstances of the child, including the child’s need at the time in question, and whether the award might entail hardship due to factors such as the payor’s present income and other familial obligations (see Undue Hardship):

A court should strive for a holistic view of the matter and decide each case on the basis of its particular facts.

While holding that once the determination that such a retroactive child support award should be ordered, as a general rule the start date should be the date of effective notice by the recipient parent that child support should be paid or increased, the court arbitrarily limited that to "no more than three years in the past". 

Once the topic is broached, the payor can no longer assume that the status quo is fair, however, the "date when the circumstances changed materially will be the presumptive start date of the award " where the payor has been guilty of misconduct.

The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.

The Supreme Court, in making its ruling, indicated that appropriate provincial legislation might provide differently.

Our modest prediction is that the Manitoba courts will follow the Supreme Court’s rationale in all child support cases.

The Supreme Court did not specifically say that such considerations would necessarily apply retroactively to lower child support retroactively where decreases in the payor’s income might have generated lower payments. Here, the payor, who has the peculiar knowledge of his/her income, will be well advised to disclose those changes with appropriate particularity, timeliness and back up documentation