RETROACTIVE CHILD SUPPORT: Payor Beware!

In 1996, the Federal Government introduced the Federal Child Support Guidelines (the "Guidelines"). The purpose of the Guidelines was to promote consistency and fairness in child support payments. The Guidelines provide for two classes of payment. First is "Section 3" child support, which is based on the payor's income as set out at Line 150 income of their Income Tax Return. Section 3 support is meant to provide for the child's food, clothing and shelter. Second is "Section 7" expenses which deals with "extraordinary" expenses such as extended health care benefits, orthodontics and extracurricular activities. Section 7 expenses are paid proportionate to the payor's and recipient's incomes.

Section 3 and Section 7 payments are generally set by agreement at the time of separation or by Court Order. The amount of the payments will rise or fall along with the payor's income. Often, the payor's income rises over time but the amount of child support paid continues, unchanged. The Alberta Court of Appeal and the Supreme Court of Canada have both held that a payor of child support has a positive obligation to increase child support payments along with increased income, in the appropriate amount as set out in the Guidelines. Failure to do so places the payor at risk of an award for retroactive child support.

In the case of D.B.S. v. S.R.G, the Supreme Court of Canada resolved the issue of how far back a recipient could request a retroactive child support award. In summary, the Court found that a retroactive award will be made for at least 3 years preceding and for a longer period of time in circumstances of blameworthy conduct by the payor. Those circumstances include hiding income, intimidating the recipient from pursuing child support and misleading the recipient into believing the correct amount of child support is being paid.

In view of this, those paying child support should be careful to keep their payments current with their income, failing which they could incur a significant liability and face an additional award of court costs in favour of the recipient. In the case of J.L.J. v. P.B.J, Kirk Montoute LLP was successful in obtaining an award of retroactive child support for a period of 4 years plus court costs on the basis of the payor's deliberate misrepresentation of his income, both to the recipient and to the Court.

As with any family law dispute, resolution of past or future child support obligations can often be resolved to the satisfaction of both parties and at a much lower cost through mediation rather than through litigation. Kirk Montoute LLP offers services for both litigation and mediation of family law matters.