The Honourable Justice Sherr of the Ontario Court of Justice issued a refresher on retroactive child support principles last week in Green v. Monah, 2015 ONCJ 368.
D.B.S. v. S.R.G, 2006 SCC 37, is the leading case on retroactive child support applications. There, the Supreme Court of Canada directed courts to consider four points in assessing such applications:
The existence of a reasonable excuse as to why support was not sought earlier;
- The conduct of the payor;
- The circumstances of the child; and
- Any hardship occasioned by a retroactive order.
As is so often the case, no single factor is determinative and the totality of the circumstances must be examined. The court must be guided by the payor's interest in certainty balanced against fairness and flexibility.
As a general rule, any award is made retroactive to the date of effective notice (but no further than three years). "Effective notice" means any indication that support should be paid or paid in a greater amount. It is sufficient to simply broach the subject. However, the recipient must continue moving forward, either by continuously pressing the payor or applying to court. A failure in this regard may vitiate effective notice in favour of the payor's interest in certainty.
Interestingly, the quantum is not bound to the guideline table amount, but rather is determined in light of what is reasonable under the circumstances. The court can adjust the duration of the retroactive order to effectuate a reasonable award.
Justice Sherr goes on to remind that the same principles apply to section 7 retroactive applications.
This case is an easy read and should be kept in the Ontario family lawyer's back pocket.
Jeffrey L. Hartman