McGouran v. Connelly is a decision from the Ontario Court of Appeal that deals with the issue of retroactive child support. The Court of Appeal initially reserved its decision until the Supreme Court of Canada spoke to this issue in the quartet of cases known as S. (D.B.) v. G. (S.R.) (“D.B.S. et al”). The parties in this case were married for approximately 11 years. They had three children who were 8, 6 and 4 years old when they divorced. Their divorce judgment contained a paragraph which required each party to disclose their income to the other on an annual basis so that child support could be reassessed pursuant to the Child Support Guidelines (“Guidelines”). In August 2000, the father’s salary increased significantly but he failed to disclose this fact to the mother, thereby breaching the above mentioned Order. In 2006, the father was found to be in contempt and was required to produce the above mentioned disclosure. Based on these new income figures, the Application Judge awarded retroactive child support from January 2003. The mother, however, had requested same from August 2000, the date on which the father’s income increased. Although the father’s conduct in failing to disclose his income was blameworthy, the Application Judge felt that the August 2000 date would make it unduly hard for the father to meet his ongoing support obligations. In their consideration of this case, the Court of Appeal carefully applied the factors set out by Mr. Justice Bastarache in the D.B.S. et al case. Those factors are;
- Unreasonable delay by the recipient parent in applying for the support;
- Conduct of the payor spouse;
- Circumstances of the child(ren); and
- Hardship occasioned by the retroactive award.
The Court of Appeal found that the mother did not unreasonably delay in bringing her claim, that the father’s conduct in attempting to evade his support obligations was culpable, and that the children needed support during the period in question. The Court of Appeal acknowledged the “three-year rule” which was suggested by Mr. Justice Bastarache but noted that, where the payor withholds information regarding a material change in their circumstances, the date of retroactivity can be extended back to the date of said change. Interestingly, the Court of Appeal chose not to make a support order which was retroactive to August 2000. Instead, the Court directed a new hearing, emphasizing that the Application Judge should have considered ways to alleviate the hardship on the payor (for example, alternative methods of payment) and should have assessed the reasonableness of withholding such a large amount of support for the children. In their reasons, the Court of Appeal Judges seem to suggest that the new hearing was designed to encourage a retroactive award that would extend over a five-year period.