April 12, 2006
The hottest topic in family law right now is the issue of retroactive child support. The Supreme Court of Canada is currently reviewing the issue, after hearing argument in February of this year.
The issue has been constantly before the courts of all provinces since implementation of the Federal Child Support Guidelines in 1997. The guidelines obligate a payor spouse to disclose income to the recipient parent, and pay child support based on those guidelines. The guidelines do not, however, make changes to support automatic as income increases, or decreases.
What happens then, if the payor’s income has gone up significantly, but child support has not?
Various appellate courts in different areas of the country have come up with different resolutions to the problem.
The Court of Appeal for Alberta has read into the guidelines a fiduciary duty on the part of non-custodial parents to disclose their incomes, and pay support in the amount the Child Support Guidelines requires. In that province, significant orders for retroactive support – ranging from $10,000 to $100,000 – have been made.
The Ontario Court of Appeal, although far more willing to order retroactive support than it has in the past, has not been as quick to order retroactive support as is the case in Alberta. The court has identified a number of factors for Ontario judges to consider in deciding if retroactive support should be ordered. They are:
- Need of the support recipient and the ability to pay of the support payor;
- Improper conduct by the support payor, such as taking active steps to hide income;
- Whether the recipient needed to encroach on capital or incur debt in order to support the children during the period retroactive support is sought.
- Any reason for delay in requesting an increase in child support or financial disclosure;
- Notice to the payor spouse of an intention to pursue child support;
- Whether an order for retroactive support would be an unreasonable burden on the support payor.
Until the Supreme Court of Canada releases its decision, this is the current state of the law in Ontario. However you stand on the issue, the Court’s decision will give all of us some measure of certainty on this very important issue.