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The Supreme Court of Canada has just released a ruling clarifying its position on awarding a variance in retroactive child support to children who are not adults. Retroactive child support is support that someone is ordered to pay in situations when they should have been paying more than they had been. However, sometimes when someone avoids their full support obligations it may not be discovered until the child is an adult. This ruling gives clarity to whether the difference between what should have been paid and what was paid can be made up when the child is an adult.
Father does not report all of his income, leaving him with smaller child support payments
The facts of the case revolve around two parents, referred to in the decisions as “M” (“the mother”) and “G” (“the father”). They had a child, referred to as “A”, who was born in 1991. M and G separated in 1994, and A lived with the mother and the father agreed to pay child support. This was formalized in a consent order in 2001.
The father’s child support obligations came to an end in 2012. It was only after this time that the mother realized the father had been understating his income from 2001 to 2012 (with the exception of 2004). After learning this, the mother applied under British Columbia’s Family Law Act to retroactively vary child support for the periods in which the father underreported.
The mother’s application for retroactive support is successful, and then overturned
The application first appeared before a hearing judge who awarded the mother $23,000 in retroactive child support. But upon appeal to the Supreme Court of British Columbia, the father was successful with overturning the decision. The court referred to a 2006 Supreme Court of Canada decision, which held that an application for child support under the federal Divorce Act had to be made while the child was still a “child of the marriage.” The court ruled that the same position should be made to applications under the province’s Family Law Act.
The Supreme Court of Canada clarifies position on varying retroactive child support
The mother appealed the decision from the Supreme Court of British Columbia. In the majority’s decision, the court said that applications for retroactive child support bust be analyzed through the laws in which they are based. The court stated that its decision in 2006 applied only to the federal Divorce Act, and should not be interpreted as an imposition on all provincial laws dealing with the issue of child support.
The court pointed out that British Columbia’s act authorizes courts to change, suspend, or terminate orders for child support retroactively or prospectively. This is unlike the federal Divorce Act, which states the child must be a “child of the marriage” in order for support to be paid.
The court determined that it was within the law to award a retroactive variance of child support. After reviewing the facts of the case, the court found that the father had under-reported his income, leading to his failure to meet his child support obligations. It also found that he would not experience too much hardship if made to make the payment. As a result, the hearing judge’s decision was enforced and the father had to pay $23,000.
To speak with an experienced Windsor family lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.
