Update Note: February 16, 2020
My blog post below is not totally accurate now as the case law has recently modified the approach. I emphasized the importance of determining whether or not the “child” was still legally eligible for child support when the support recipient actually brought her application. The law has now changed. Read further.
The common thinking (at least in Ontario) used to be that if the support recipient attempted to apply for child support while the “child” was no longer a “child of the marriage” within the meaning of the Divorce Act, then such an application could be summarily stopped in its tracks. In other words, we are talking about a situation where the “child” for example was in university (and therefore likely eligible for child support) but completed his/her studies and was now out working. The thought was that such a “child” was no longer currently eligible.
If the support recipient brought her application during the time when the “child” was out there working and totally self sufficient, we would have told you that you had a very decent chance of having that application summarily dismissed.
But now ‘not so fast’! The Alberta Court of Appeal has ruled (on 1 November 2019) in Brear v. Brear that where the support recipient took preliminary steps to increase support during a period of eligibility for child support but did not issue her application until the eligibility period expired, that was no bar to the court hearing her claim. Philip Epstein has pointed out (Epstein’s This Week in Family Law, Fam. L. News 2019-46), that there were differing approaches across the country. And one such case from the B.C. Court of Appeal (Graydon v. Michel 30 May 2017) decided that the court had no jurisdiction to change the support order once the “child” at the time of the application was no longer eligible. However, there has been an appeal to the Supreme Court of Canada and the decision (18 November 2019) is that the appeal was allowed. Reasons have not yet been released. Nonetheless, since the SCC restored the original decision and the original decision allowed the retroactive application to proceed, I think that we can safely now say that:
Courts across Canada will accept jurisdiction to hear retroactive adjustments of child support even where the application is brought after the “child” no longer has “child” status under the law.
Nonetheless, the four factors that I discuss in the blog post below are likely still relevant.
Laws change as to the manner in which the courts apply the law. It is important to secure up to date legal advice.
Now, here is my November 2015 blog post:
Your income increased over the years. That does not mean that you will definitely be required to retroactively adjust upwards your child support payments. Many people believe that if your income has gone up, then a retroactive adjustment simplistically and automatically follows. Keown v. Mainer (Man. Q.B.) reminds us that the analysis here is much more nuanced. A careful reading of the Supreme Court of Canada decision of S. (D.B.) v. G. (S.R.) (known as “D.B.S.” for short which is extensively referenced in Keown v. Mainer, assists in the analysis. To help one understand the factors at play, read Keown v. Mainer. If you are a really keen investigator, then try to read D.B.S.. This blog post can be your basic introduction to the retroactive child support issue.
When you are served with a claim for retro increased child support, you first need to ask if the child is still entitled to child support at all. In our office we have seen cases where the support recipient tries to assert a retro claim for a child support increased payment at a time when the child is really no longer a “child” legally speaking that is. If the “child” is no longer legally a “child” at the time the Application is served, then perhaps a motion to strike the claim should be contemplated; the motion might very well succeed. But beware. Keown v. Mainer also reminds us that there is no presumption that child support terminates then either. Still, what is encouraging is that the support recipient has a legal onus to prove that an adult child still is still legally entitled to support.
Once we have established that the claim for retroactive increased child support is (or may have been perceived to have been) brought prior to the termination date of the support order, we then go on to consider a number of factors that will impact the decision as to whether or not to order a retroactive increase in the amount of child support:
1. Reasonable Excuse for Why Support Was Not Sought Earlier (Delay)
If the claimant cannot advance a credible reason for delaying the application, then the support recipient will have a good argument to have the claim dismissed.
2. Conduct of the Payor Parent (Blameworthy Conduct)
If you are the support payor, it would have been a good idea to have made annual financial disclosure. That will hold you in good stead indeed. In Keown v. Mainer the previous order required both parents to make this disclosure but neither did. Nonetheless, in light of all of the facts in that particular case, the payor’s failure to make annual disclosure was not fatal to his case. If you are the payor and you have kept your payments up to date on a timely basis, then you will be sitting in a very good position. The less the difference in what you paid versus what you should have paid on your increased income is also a helpful factor. In other words, if as the payor you acted reasonably, you will be ahead of the game, so to speak.
3. Circumstances Of The Child
If the child really did not suffer all that much from the reduced support (for example, the custodial parent earned a decent income), then a retro increase will be less likely.
4. Hardship To The Payor
Believe it or not, the law is supposed to take cognisance of hardship that might be caused to a support payor who had faithfully paid under a court order and is now taken by surprise with a demand to pay thousands in retro support. This “hardship” is different from the “undue hardship” factor under section 10 of the Child Support Guidelines. If the support payor is seeking a retroactive reduction to his support payments (ie. trying to cancel accumulated arrears), then do not expect a favourable reception from the court on this factor.
Do not assume that an underpayment of child support when later compared to increased income automatically results in a retroactive increase. It’s not just a matter of an arithmetical exercise to recalculate child support. As I have discussed above, the Keown v. Mainer type of analysis is much more nuanced. We need to examine certain factors and then come to a reasoned conclusion. There is room for negotiation. There is room for argument.