Retroactive Child Support: Benefits and Burdens

3. Post-SCC Considerations

In light of the variety of factors to be considered on retroactive child support applications, and the Supreme Court of Canada's direction that judges take a holistic view of the situations underlying the applications, it is not surprising that judges have approached cases in a very "fact specific" manner, which arguably makes it difficult to predict the result of any given application. In this author's view, the factors that seem to be providing the most pronounced focal points for decision making in the post-SCC era are the blameworthiness of the payor and the effect of delay by the recipient. In general, courts seem to be interpreting "blameworthiness" broadly, as the Supreme Court of Canada suggested they should.[59] It may actually prove more difficult to establish a predictable approach to determining the impact of recipient delay in seeking increased support. At this stage, no definitive approach seems to have emerged. As D. Smith notes:

It was hoped that in Baldwin v. Funston the Court of Appeal for Ontario would opine on how we are to assess the recipient's duty to pursue support and the payor's duty to increase support as income increases, in the context of a classic "she did not ask and he did not tell" situation … The court simply upheld the trial judge's conclusions without further substantive analysis.[60]

In addition to future judicial elaboration of this test, it has been suggested that the issue of the child's past and present circumstances will also be the subject of keen consideration in future cases,[61] though to date relatively few cases have addressed this question.

One question not directly raised in the Supreme Court decision is whether the principles set out within the SRG case apply to payors who seek a retroactive reduction in child support obligations.[62] D. Smith discussed this issue, noting that the argument in support of extending the Supreme Court's discussion to retroactive reduction claims was likely to be that "the underlying principle of the decision is that support should match income—as income changes, so should support. In that instance, it is difficult to conclude that a reduction in income historically should not at least open the door to the analysis."[63] It appears that this rationale has been successfully applied in a handful of claims seeking retroactive reduction of support obligations.[64] D. Smith's conclusion, however, that while payor variations may be possible based on the reasoning within the decision, it will be difficult to succeed factually, is likely true.[65]

Despite the fact-specific application of the factors set out in SRG and the associated challenges of predicting likely outcomes, some practitioners feel that the decision has enhanced certainty in terms of overall client expectations. Phil Epstein, for example, says that clients are now clearer about their obligation to increase support with increased income, and about the likely ramifications of not doing so.[66] Epstein and Madsen suggest that "the safe and cautious message to give payors is certainly to disclose changes in their income, pay in accordance with the Guidelines, or be at risk of a retroactive award at some point in the future."[67]

The implementation of recalculation schemes within each province and territory would, in the author's view, be the ideal manner by which to foster greater certainty and relieve recipient parents of the potentially daunting burden of initiating negotiations for revised support obligations with a former partner. Until such schemes are in place, however, it would be extremely useful for counsel to consider the following approaches[68] when dealing with child support matters:

While there will continue to be interpretive challenges associated with retroactive child support calculations, it is hoped that the foregoing suggestions will assist in reducing future uncertainty about the obligations associated with changing income, and the current onus on each party to facilitate the child's right to benefit from each parent's financial ability.