Back-Dating Child Support – A Kids’ “Bill of Rights”
Sometimes separated or divorcing parents must return to court to ask a judge to effectively adjust and “back-date” (so to speak) a previous child support order, in order to take into account certain factors that were in existence at the time the original order was made but came to light only afterwards.
This is what is known as “retroactive” child support order; it strives to address in the present, those circumstances that existed in the past. For example, if the court originally made a child support order based on incorrect assumptions as to the paying parent’s income level, and it is later revealed that his or her income was higher during that time relevant period, then the court may see fit to make an order today, that more accurately reflects the parent’s past child support obligations for that period. Technically the term “retroactive” is a misnomer; the court is merely being asked after-the-fact to calculate afresh what the support should have been if the correct figures were being used at the time.
However, the exercise is not as simple as it may seem. Numerous principles are at play, and these were comprehensively considered by the Supreme Court of Canada in a prominent case called D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra.
There, the Court set out a list of factors to be considered whenever a parent is asking for retroactive child support, for a retroactive increase or decrease, or for child support arrears to be rescinded. When stripped of the legalese, it amounts to a sort of “Kids’ Bill of Rights” in connection with retroactive child support. The Supreme Court of Canada said:
• Child support is the right of the child that arises upon the child’s birth.
• It exists independent of any statute or court order; it also survives the breakdown of the parents’ relationship.
• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together.
• The amount of child support owed will vary based upon the income of the support-paying parent.
• The child support analysis must not lose sight of the fact that child support is the right of the child. Accordingly, the child should not be left to suffer if one or both parents fail to monitor child support payments vigilantly.
• Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it.
• Any incentives for paying a parent to be deficient in meeting his or her child support obligations should be eliminated.
• The specific amounts of child support owed will vary based upon the income of the paying parent. However, as that income level increases or decreases, so will the parent’s contributions to the needs of the child.
For the full text of the decision, see:
D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, [2006] S.C.J. No. 37 (S.C.C.)
