A 2006 decision rendered by the Supreme Court of Canada stated that retroactive child support may also be awarded. In order to qualify, and based on the Act under which you bring your claim, the definition of “child” or “child of the marriage” must be satisfied, i.e. the child must still be eligible for support.
Retroactive support may be awarded in situations where the paying parent’s income has increased and he or she has failed to disclose the information so that support payments could be adjusted accordingly.
In this case it was affirmed that support payors have a positive duty to disclose income and any increases in income and a positive duty to increase their support when their income increases. Support recipients also have a duty to actively pursue the support increases to which the children may be entitled and failure to do so may be a factor in determining the appropriateness of a retroactive award.
The following is the test that the courts will apply when making determinations about retroactive child support:
Determine whether a retroactive award is appropriate
Determine whether a retroactive award is appropriate by considering the following factors:
- the reason for the recipient parent’s unreasonable delay in seeking child support.
- The blameworthy conduct of the paying parent.
- The past and present circumstances of the child, and
- Any hardship imposed by a retroactive award.
Determine what period the amount should cover
- It is presumed that the award should cover the period following the date on which the claimant parent gave “effective notice”, i.e. signaled a desire for award or an increase in award.
- It is inappropriate, generally, to make it retroactive to a date more than three years before formal notice was given (an exception to this is when there has been blameworthy conduct making it difficult to seek support such as: refusal to disclose financial information, etc.)
Determine the proper quantum (i.e. amount)
- The quantum is determined in accordance with the applicable legislative scheme (i.e. CSG).
- Or, the courts may choose to alter the time period that the retroactive award captures if doing so would ensure overall fairness. For example, if the court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period from the calculation of the amount.