[brare]

I have been separated for 7+ years in BC Canada. Children are now over 19. Is there a limitation on the time my spouse can claim child and spousal support?

[GV70]

The case of L.S. v. E.P. a 1999 decision of our Court of Appeal, used to be the most important case on this issue in British Columbia, and still is the most important case for orders made under just the Family Relations Act. In this case, the court set out the factors should considered in deciding whether there should or should not be a retroactive order for support:

"A review of the case law reveals that there are a number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include:

(1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent;

(2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order;

(3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses;

(4) an excuse for a delay in bringing the application where the delay is significant; and,

(5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.

"Factors which have militated against ordering retroactive maintenance include:

(1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations;

(2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and,

(3) a significant, unexplained delay in bringing the application."

When hearing an application for retroactive child support, the court would apply these factors in deciding whether a retroactive award was warranted and, if so, how much the award should be for and when the retroactive effect of the order should begin.



D.B.S. v. S.R.G.: A Change in the Law

In July 2006, the Supreme Court of Canada released its judgment in four related cases, D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, and significantly clarified the law on retroactive child support, and where it changed the law the changes weren't all that far from our Court of Appeal's decision in L.S. v. E.P. These cases are referred to collectively as just "D.B.S. v. S.R.G."

The logic underlying the court's decision is this. Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the "means" of the parents and the real "needs" of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty was to pay support at the amount required for his or her income, using the tables attached to the Guidelines rather than budgets and the needs and means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis.

The following is a summary of the important points in this decision.

The Rationale for Retroactive Support

* Both parents have a duty "to ensure that their children are receiving a proper amount of support."
* "While the paying parent does not shoulder the burden of automatically adjusting payments" when his or her income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing."
* If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support.

When Retroactive Child Support Should be Ordered: when there is an existing order

* Child support orders "must be considered presumptively valid."
* "Where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations."
* An obligation to pay the proper amount of support is "independent of any court order that may have been previously awarded."
* Where parents fail to adjust the amount of support payable, "a court may order an award that recognizes and corrects this failure."

When Retroactive Child Support Should be Ordered: when there is an existing agreement

* "A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a parent acting pursuant to a court order."
* "Agreements reached by the parents should be given considerable weight."
* "Where circumstances have changed," such that the "actual support obligations of the payor have not been met, courts may order a retroactive award."

When Retroactive Child Support Should be Ordered: when there is no order

* There is "no restriction" as to "the date from which the court may order that the award take effect."
* "Courts will have the power to order original retroactive child support awards in appropriate circumstances."

Factors in Making Retroactive Child Support Awards

* The child must be eligible to receive support when the application for retroactive support is made; "child support is for children of the marriage, not for adults who used to have that status."
* The court has the discretion to award or not award retroactive support, but retroactive awards "need not be seen as exceptional."
* Retroactive child support should not be awarded if the child would not actually benefit from the award of if the award would cause hardship to the payor.
* "A court should strive for a holistic view of the matter and decide each case on the basis of its particular" facts.
* The recipient's delay in seeking an increase in support will not favour a retroactive award where the recipient "knew higher support payments were warranted, but decided arbitrarily not to apply."
* The recipient's delay will not be considered if the the recipient feared the payor's reaction or lacked "the financial or emotional means to bring an application, or was given inadequate legal advice."
* "Courts should not hesitate to take into account a payor's blameworthy conduct," and courts should "take an expansive view of what constitutes blameworthy conduct."
* Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support," such as hiding income increases or intimidating a recipient from seeking an increase in support.

How Far Back Child Support Awards should be Retroactive

* The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go.
* "Effective notice" doesn't mean the date of applying to court, but the date of notice of "any intention by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated" was given.
* Except where there is some blameworthy conduct on the part of the payor, it will "usually be inappropriate" to go further back in time than three years from the date of the hearing.
* Where there is blameworthy conduct, "the presumptive date of retroactivity" will be the time the payor's "circumstances changed materially."

How Much Retroactive Child Support should be Ordered

* Retroactive awards must ensure that the amount "fits the circumstances."
* "Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended."
* "It will be easier to show that a retroactive award causes undue hardship" than it is to show than a normal child support order causes undue hardship.
* A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case."

In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if his or financial circumstances change following the making of an order or agrement dealing with child support. In making such an order, the court must consider:

1. any excuse for the recipient's delay in seeking an increase in support;
2. any blameworthy conduct on the party of the payor;
3. the circumstances of the child; and,
4. any hardship that a retroactive award would cause to the payor.

If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor's conduct is blameworthy, then the support should be retroactive to the date of the change in the payor's financial circumstances, and may be retroactive beyond the three year mark.