Written on behalf of Shariff & Associates

Courts have discretion in setting the starting date of child support and are able to make retroactive support orders. Courts have held that retroactive awards are not exceptional, and that they simply hold support payors to their existing obligations that have gone unfulfilled. However, retroactive support is presumptively limited to the three years before the recipient provided notice to the payor. A longer period may be justified after considering all the relevant circumstances. A payor’s blameworthy conduct, such as failing to pay support, will be considered in a court’s analysis.

The Presumptive Start Date for Retroactive Support

Parties may claim support for the period of time before an application is issued. Section 34(1)(f) of the Family Law Act gives courts authority to make retroactive support orders. In Norris v. Riley, before their case was started, the father assaulted the mother and faced criminal charges for which he was convicted. The mother was fearful of the father and decided to withdraw claims for child support and a restraining order. In 2021, the father commenced a new motion and the mother claimed that the father should pay child support from January 2015.

Looking at the presumptive start date for support, the mother’s request for support was filed in September 2021, which was the date of formal notice. However, the judge noted that in Colucci v. Colucci, the Court indicated that the presumptive start date should not be more than three years before the date of formal notice; therefore, the presumptive starting date for support would be September 2018. However, the mother asked the Court to deviate from the date and order support retroactive to January 2015. The father opposed this and argued there should not be any order for retroactive support and that support should simply start on the first of December 2021.

The mother explained that she delayed seeking child support because she was afraid of the father. She stated that there had been violence in their relationship and that she had earlier withdrawn her claim for child support and a restraining order after a temporary consent order was made. The judge noted that this was unusual and indicated the seriousness of the situation. Additionally, the judge found the father had engaged in “egregious blameworthy conduct” as he paid no child support since the separation in 2011, and “repeatedly preferred his own interests to the children’s interests.”

Courts Consider Factors When Weighing a Retroactive Award

Due to the father’s conduct, Justice Curtis concluded the children had been disadvantaged, noting that while the mother had provided for their needs, doing so had been difficult. When dealing with retroactive support applications, the Supreme Court of Canada in D.B.S. v. S.R.G, outlined the factors that a court should consider, which included:

1. Whether the recipient spouse provided a reasonable excuse for their delay in applying for support;
2. The conduct of the payor parent;
3. The circumstances of the child; and
4. The hardship that the retroactive award may entail.

When considering any delay, Michel v. Graydon established that “a delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application.” Ultimately, courts must look at whether the reason for the delay is understandable. In the same case, the Court also added that an unreasonable delay “does not negate the payor parent’s blameworthy conduct; indeed the blameworthy conduct may sometimes cause or contribute to the delay.”

Application of Factors to Facts

In Michel, the court identified a range of reasons that had been accepted as justifying a delay in applying for child support. Among others, these included:

• A fear of reprisal or violence from the payor parent;
• Prohibitive costs of litigation or fear of protracted litigation;
• The fear of a counter-application for custody;
• The lack of emotional means; and
• Wanting the child and the payor to maintain a positive relationship.

As the Court explained, these justifications raised considerations of both “impracticability and inaccessible justice” and “fear and danger”. Further, “in neither case should claimants be barred from having their applications heard.” Additionally, the Court acknowledged that individuals who had experienced domestic violence by a payor may be fearful and decide to wait before seeking support.

In this case Justice Curtis concluded that the father should not be able to benefit from the fact that the mother was afraid of him. The father’s behaviour was blameworthy, and it would be contrary to public policy to allow the fear of violence by the payor to benefit from not paying support for the years that the recipient did not pursue child support. Consequently, the father was ordered to pay child support from January 2015.

Failure to Disclose Income Can Justify a Retroactive Award

In Zevallos v. Munoz, the mother sought to vary an existing child support order and sought retroactive support as of 2008, in addition to reimbursement for expenses related to their child’s post-secondary education. The father had also not increased his support payments despite having his income increase, and he had not voluntarily provided financial disclosure since a 2004 court order.

The judge looked at D.B.S. in which the Supreme Court noted that retroactive awards merely hold payors to their existing legal obligations and that retroactive awards are not limited to “exceptional circumstances.” Additionally, in Michel, the Court stated that while it is usually “a good idea to seek child support as soon as practicable” it is “unfair to bar parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier.”

Retroactive Support Justified in Cases of Failed Income Disclosure

When considering a party’s blameworthy conduct, the court in Michel indicated that retroactive support awards will frequently be justified when the payor parent fails to disclose increases to their income. In D.B.S. the court explained that in knowingly doing so, the parent diminishes their support obligation to their child and that they should not benefit from such conduct. Courts have also acknowledged that a payor’s efforts to pay, and “communicate about child support matters and to disclose income information on an ongoing basis” are positive factors that can support their position on a retroactive support analysis.

In this case, the mother did not know where the father was. The 2004 order required that the father keep the mother informed of his address and telephone number, but it was clear the father did not do this. The father explained that he often moved and failed to report his address, however, he added that the mother knew his email and social media. Overall, the mother had understandable reasons for the delay in not pursuing a motion earlier.

The father had an obligation to provide the mother his address and provide financial disclosure as required by the Child Support Guidelines. Accordingly, the father could not complain about the mother’s delay when his failures accounted for some of the delay in the mother initiating the proceeding. As of 2008, the father’s income had more than doubled, and given his blameworthy conduct, the judge found that child support should be retroactive to 2008.

A Range of Factors are Considered in Setting the Date of Retroactivity

The Supreme Court of Canada has set out several factors that guide courts in making retroactive support orders. A recipient’s delay in enforcing support is a relevant consideration, as is the payor’s blameworthy conduct, although no factor is decisive and all will be considered. However, courts have found that payors who fail to provide financial disclosure should not benefit from the recipient’s delay.

Contact Shariff & Associates for Trusted Advice on Child Support and Retroactive Support Orders

Navigating issues relating to property division and support claims amidst a separation or divorce can be complicated and contentious, which is why the experienced family lawyers at Shariff & Associates are ready to help. We provide clients with an assessment of their circumstances and explain their rights and options in accordance with the applicable laws. We encourage clients to explore early dispute resolution opportunities and provide exceptional representation in matters that require trial. Our office is located in Markham-Stouffville and we proudly work with clients throughout Markham and the Greater Toronto Area. To contact a member of our team and learn how we can help you, call us at 905-591-4545 or reach out to us online.