If you have had a family law matter involving retroactive child support, depending on how long ago it was, you have probably heard of D.B.S. v. S.R.G. 2006 SCC 37 (”DBS”) and more recently, Michel v. Graydon 2020 SCC 24 (”Michel”). Both DBS and Michel are Supreme Court of Canada decisions.
Recently, the judgment was released for Henderson v. Micetich, 2021 ABCA 103 (Henderson). This case is significant because the court reviewed DBS and Michel and provided direction going forward on this very important issue of retroactive child support.
In Henderson, the parties cohabited from 2002 – 2009. They had 2 children. When they separated, the parties came to an oral agreement whereby the father would pay $800 a month in child support based on his income at the time. He also had parenting time with the children every other weekend.
The mother remained in 2009 to a partner who earned a much higher income and consequently, she and the children were afforded a comfortable lifestyle.
In 2018, the father sought more parenting time and the mother counter-claimed for child support retroactive to January 2018. In the same year, the father made a consumer proposal to deal with his approximately $430,000 in personal debt. His debt was reduced to $42,000 and he paid $700 monthly towards it.
The motion judge refused to order retroactive support, basing his decision on the factors outlined by the Supreme Court in DBS. The decision in Michel had not been released at the time. One issue with this decision was the mother was actually not claiming retroactive support, so DBS should not have applied. Any support obligation from January 2018 when the father started the court process is NOT retroactive child support.
The court also reviewed the various DBS factors and interpreted them in light of Michael and found that:
A) Delay would rarely prejudice a payor parent because the payor knows or ought to know that his or her child support obligation should be calculated based on his or her line 150 income, adjusted annually. Given the Payor has the information advantage in this scenario, and in light of other social and economic factors, delay has a very limited role to play in the analysis.
B) The court rejected the idea that subjectively, the payor ought to have thought he or she was doing something wrong for them to be engaging in blameworthy conduct. The court said even failure to disclose an increase in income is blame worthy conduct.
C) The court also stated that there was no requirement to prove need on the part of the children. Child support is the right of the child and children are entitled to expect and receive child support from both parents.
D) With respect to hardship, the court held that there is usually financial difficulty when immediate lump sum cash payment is awarded but without more, it is neither undue nor unfair, because the payor has in fact benefitted from failing to fulfill his or her support obligation.
The court allowed the mother’s appeal and directed the father to pay $24,408.90 in support arrears, payable in monthly installments. The father’s ongoing child support payments were also increased to $1,662.
The lesson here is to be mindful of the importance of paying the correct table amount of child support, based on the child support guidelines. If there are reasons for paying less than the table amount of child support, be sure to articulate it and be sure that it benefits the child/children. Remember, child support is the right of the child. Also, do not count on the passage of time, the receipt’s delay, lack of blameworthy conduct on your part, lack of need on the part of the children, or your financial hardship to play any part in eliminating or reducing your retroactive child support obligation.