Earlier posts on this website discuss the Supreme Court of Canada decision of D.B.S v. S.R.G, which considered the issue of retroactive child support. In that case the Court held that generally, a claim for an increase in support should be calculated as of the “date of effective notice”, which is when an increase in child support was requested by the recipient. Unless a payor demonstrates blameworthy conduct, the retroactive award should not be more than three years before this “effective notice”. The Court further held that the decision to order retroactive support should be based on a number of factors, all of which the Courts should strive to consider and balance.
The June 2014 OCJ decision of Potter v Da Silva reviews the factors set out in the 2006 Supreme Court of Canada case. The Court in this case found that a retroactive payment dating back to the date of birth of the child was justified. The payor was ordered to pay support, retroactive to 2006. In reaching this decision the court considered a number of factors to be relevant, including the following facts:
1. the mother was intimidated by the father and did not therefore pursue the correct amount of support earlier;
2. the father was aware that he was obligated to pay child support in accordance with his income, but chose to pay what he wanted, benefitting his own interests over that of the child;
3. the father chose to conceal or diminish his income since the child was born, to the detriment of the child;
4. the father was able to accumulate assets while not meeting his child support obligations. The mother was not able to accumulate savings for the child; and
5. the father had the ability to pay a retroactive order.
This case is one of the many examples post D.B.S v. S.R.G, of how the Courts are not prepared to allow support payors to hide their true income, in order to avoid paying the support their children are entitled to under the child support guidelines. In such circumstances, the Courts are prepared to go much further back with retroactive support payment orders, than the usual three years before effective notice.
In this case the retroactive order went back eight years to the date the child was born. Where the payor parent engages in blameworthy behaviour and all the other relevant factors support a retroactive payment, it would seem the courts are prepared to go back as long as it takes to ensure the appropriate child support is paid.
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