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How Far Back Should Retroactive Support Go?

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How Far Back Should Retroactive Support Go?

In Giroux v. Mueller the main question was whether there should be a retroactive adjustment to the child support owed by the father, and if so, how far back it should go. In making this determination, the court confirmed the general tests and considerations that must be applied under Ontario law whenever retroactive support is being claimed.

As background: Originally, the father had been ordered to pay $520 per month in child support for the couple’s two daughters, based on the Child Support Guidelines. He was up-to-date in his payments.

However, since the initial order was made, one of the daughters had graduated from high school in 2007 and had gone on to college, but by law had ceased to be eligible for support in 2010. The other daughter had also graduated high school in 2011, and commenced university that same year.

In light of these changes, the mother brought a motion for an adjustment to the Guidelines support amount, making it retroactive to January 2006. The basis for her request was somewhat novel: she asserted that the father had an obligation to disclose any increases in his income, and that his failure to make such disclosure after the mother’s request in 2011 is “blameworthy conduct” which entitles her to back-dated support for the children.

The father opposed the mother’s motion, claiming that if support should be retroactive, it should go back only to 2009, which was three years back from the date on which the motion was brought in 2012.

The court considered the applicable law. The issue of retroactive of support was dealt with by the Supreme Court of Canada in a case called S. (D.B.) v. G. (S.R.), where the court confirmed that every parent has the obligation to support his or her child, and that retroactive support is not “exceptional”. Rather, both parents have the responsibility of ensuring that the child receives appropriate support and any obligation is enforceable only once the recipient parent applies for it.

Next, the test for whether retroactive support should be granted involves a court considering: 1) the reasons for delay, 2) any blameworthy conduct by the paying parent; 3) the circumstances of the children; and 4) any hardship experienced by the paying parent. And while it is the “blameworthy conduct” factor that often attracts the most attention, in law all four of these factors must be considered “holistically”, with no single factor being paramount to the others.

There are also two general rules that apply to such scenarios: 1) retroactive child support extends back three years from the date the paying spouse is given notice (for example by the fact that an application for an adjustment to support is launched with the court), unless there has been blameworthy conduct; and 2) the child must be a “child of the marriage” – and therefore eligible to receive support – at the time the application is made.

The court then applied these tests to the facts at hand. Here, it was clear that by imposing the “child of the marriage” criterion at the outset, one of the daughters no long qualified for support at the time the mother’s application was brought.

As for the reasons for the delay, the mother gave no palpable reason for her failure to pursue an adjustment to support until 2011. She knew the father’s whereabouts, had no fear of him retaliating, and did not lack the financial or emotional means to pursue the claim earlier.

The court also considered the other enunciated factors: in law, “blameworthy conduct” could include failure to pay child support (which was not the case here), but the refusal to disclose income had to be viewed against the fact that the mother did not request disclosure until 2011, which was almost 13 years after the initial child support order had been made. The “financial hardship” criterion related to the paying parent; it could not include consideration of sacrifices made by the parent in receipt of the support.

In the end – and because the effective notice to the father was given only in 2011 when the mother launched the motion to vary – retroactive support was to be limited to the three-years previous to that date, and was to relate to the second child only.

For the full text of the decisions, see:

Giroux v. Mueller, 2013 ONSC 246 

http://canlii.ca/t/fvkk0

S. (D.B.) v. G. (S.R.), 2006 SCC 37

http://canlii.ca/t/1p0tv

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