Retroactive Child Support:
I owe? But I Thought We Had an Agreement!

Chris has been told to pay $20,000 in retroactive child support. 

Chris and Suzanne met at a speed dating event (clearly before E-harmony and Tinder) and within a year were ‘hitched’ in Vegas. Their son Hugo was born four months after they returned from Vegas. They named him Hugo after a lengthy “discussion” and a coin toss; Chris got to name him after his dad.

Life for Chris and Suzanne quickly became stressful and unhappy. Everything took its toll. Because of their lifestyle before Hugo, they had too many bills. They did not agree on how to parent Hugo. Finally, Suzanne had an affair with a co-worker. It was all too much for them to handle. They decided to separate and divorce. 

As their Vegas dreams died, they hired lawyers and entered into a separation agreement. They share the parenting of Hugo on a week on and week off basis. 

The teenage years have been difficult for Chris and Hugo's relationship. Hugo is a video game obsessed, fridge consuming, and nerve grating teenager.  He fights with Chris continually and moves in with his mom full time in May 2013.

Worried for his son, Chris lets him stay with Suzanne in hopes he will return to the usual schedule soon. He hopes that the tension between them will now have the opportunity to "blow over." Chris' ‘short-term’, solution drags on for three years.  Instead of the communication between Hugo and Chris improving it steadily deteriorates.

In December 2015, Chris received a not so friendly letter from Suzanne’s lawyer demanding $20,000 from him.

Too busy to read the article? Watch the video instead! 

How Far Back Will Chris Have to Pay Retroactive Child Support? 

Chris does some Google searches to figure out whether or not he will have to pay the demanded funds. Because he can't seem to find a straight answer, he calls his lawyer for help.

This is probably where our story gets a little boring but stay with us.  Canada’s leading case on retroactive child support is the Supreme Court of Canada decision D.B.S. v. S.R.G. It outlines what courts will look at in retroactive child support cases.  First, child support should be awarded retroactive to the date of the effective notice (the date when Suzanne informed Chris that the current child support arrangement was inadequate).  Second, it will be inappropriate to order retroactive support in excess of three years from the date of formal notice.  Finally, any blameworthy conduct on behalf of the payor could be a reason to ignore the three-year limitation.

OK, first did Chris commit any blameworthy conduct?  Bullying your ex-spouse if they ask for child support, putting the kids in the middle of a financial dispute, or failing to tell the other spouse of a significant increase in salary is all considered blameworthy conduct. Chris did not engage in any blameworthy conduct.  

On September 20, 2015, Chris received a request for financial statements and her lawyer told Chris that it was for the calculation of child support.  On December 2, 2015, Suzanne’s lawyer wrote Chris another letter saying that they will be applying to set aside the separation agreement, and applying for support. The lawyer told Chris that he was required to pay retroactive child support back to May 2013. 

So which date would you assume is the effective notice date for child support?  When will Chris have to start paying support? Is Suzanne's lawyer right that retroactive child support is payable by Chris back to May 2013 when Hugo first moved in with Suzanne? Or will it be September 20, 2015? Or will it be December 2, 2015? 

This is what we say the courts will say. First of all, to Chris' immense relief, Suzanne's lawyer is wrong. Although everyone knew that Hugo was living with his Mom as at May 2013, there was a separation in place already that said no child support was payable. Suzanne never asked for child support or told Chris that she wanted child support until September 2015. It would be unfair that Suzanne could unilaterally be able to change the terms of the child support without first advising Chris that this was going to be happening. At the same time, Chris has an obligation to support his son. When Suzanne's lawyer asked Chris to disclose his financial information in September 2015, Chris should have not only disclosed his income, but he should have also started paying support at that time.

Of course, each case, and each jurisdiction is different in terms of how the law relating to retroactive child support applies. 

We think it is always a good idea to seek legal advice should you be someone who thinks they are entitled to retroactive child support or have been told you should be paying.

Written by Michael Davis, when he was almost an articling student.

Hemminger Law Group Westshore - Lawyers with heart! Providing Family law and Personal Injury law services to the Westshore and beyond (Langford, Westshore, Colwood, View Royal, Sooke, and Victoria)!