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Article written by Diana Isaac
The concept of child support is generally straightforward: When parents separate or divorce, child support is paid from one parent to the other, to contribute financially to the child’s care, needs, upbringing and health.
Child support can be worked out between parents, or a court may order child support to be paid on a going-forward basis, usually each month. However, a court may also be required to look backwards to deal with support that should have been paid.
In these circumstances, there are two scenarios which may be considered:
- 1. Arrears of support; and
- 2. Retroactive support.
Arrears
Arrears of child support are simply those amounts that the other parent was required by agreement or ordered by a court to pay, but failed to do so. In other words, an order forcing a parent to pay arrears is a follow-up to a prior court order that the parent did not comply with for some reason.
Perhaps surprisingly, the determination of the exact amount of arrears is not always straightforward. The amount can depend on how long the arrears were accumulating. The statutory regime that governs limitations for child support claims initially did impose a deadline, but that changed 15 years ago.
Now, support arrears are often collectible to the full extent that they remain unpaid in the first place, but a court can make an adjustment to the amount owed by the paying parent, in the right circumstances.
For example, in a 2017 Ontario case called Beaudan v. Phillips,[1] the father had agreed in a 2008 separation agreement to make child support payments of $10,000 per year for his two children. However, except for one lump-sum payment of $5,000 in 2009, he never followed through with making payments. He also failed to pay the mother spousal support as agreed.
Nonetheless, the mother took no steps to go after him for the money until 2014, when she filed the agreement with the court and asked for help in obtaining the arrears.
In considering how to deal with the arrears, the court took into account many factors, such as: variations in the father’s employment over the years; changes to the children’s living arrangements and corresponding level of need; as well as the mother’s failure to actively pursue arrears. Viewed from roughly the date of the hearing, the court ultimately fixed the child support arrears at only about $32,000, and awarded the mother only about one-half of the $45,000 the father owed.
The court reasoned that the father should not be allowed to have the arrears rescinded entirely as he had requested; otherwise, this would effectively condone his high-handed and unjustified breach of the agreement and even allow him to profit from it. On the other hand, the mother was not entitled to be awarded the entire amount because she had failed to explain her almost 7-year delay in pursuing the accumulated amounts.
Cases like this one illustrate that arrears are generally still collectable, but an undue delay on the part of the recipient can result in the amount being significantly reduced by the court.
Retroactive Child Support
Going-forward child support claims are one of the exceptions to the general rule that legal claims must be brought within a stipulated limitation period. However, retroactive support – meaning a claim for money that should have been ordered and paid in the past. Unlike an order for arrears, there is no previous existing order in place.
The reasoning for this goes back to a Supreme Court of Canada decision in S. (D.B.) v. G. (S.R.). In that case, the court had been asked to consider the impact of a mother’s delay in having a child support order enforced against the father. He had been ordered under the Child Support Guidelines to pay $700 per month, which he largely did, but failed to advise the mother that after their divorce, his income had increased dramatically.
He was aware of the mother’s financial difficulties, actively withheld information, refused to provide assistance when she requested it, and in fact responded to her requests with intimidation. The mother nonetheless gave the father notice that she was going to court to get retroactive support order against him, and succeeded in doing so despite several unmeritorious appeals that he launched.
In the course of confirming the award in the mother’s favour, the Supreme Court of Canada cautioned that on all such retroactive support claims, there must be a balancing between the paying parent’s interests (including that of certainty in his or her financial affairs), versus the rights of the child to support even in the face of delay by the recipient parent in requesting it.
The Court added that it would normally be inappropriate to make a child support award retroactive to a date that is more than three years before formal notice was given to the paying parent (here, the father) that support was being requested. However, in this case the father engaged in blameworthy conduct, which justified setting a different and longer date.[2] On this point, other factors for courts to consider include whether:
- The recipient parent delayed unreasonably in advancing the claim;
- There is evidence that the children suffer a hardship because of the reduced support; and
- The paying parent would suffer hardship if ordered to pay retroactive support now.[3]
The court cautioned that while the formal notice date will usually signal to the paying parent that child support is about to be demanded, a “prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned.”
In other words: A child support recipient may be able to claim retroactive support, likely for three years in the past after giving notice to the paying parent. However, once he or she gives notice to the other parent, it is important to take steps promptly, otherwise the right to claim even that much support could be lost.
[1] [2017] OJ No 1276, 2017 ONCJ 160, 2017 CarswellOnt 3719, 277 ACWS (3d) 803, 91 RFL (7th) 220.
[2]D.B.S. v. S.R.G. at para. 124.
[3]Alexander v Alexander, 2016 CFLG para 27,157, 2015 ONSC 5639, [2015] OJ No 4708.