Child support payment can be changed retroactively--Supreme Court rules.

Child support payments can be changed when the payer parent has a change in income and the award can be retroactive to the date that the change occurred, the Supreme Court of Canada ruled.

The court made the decision of four Alberta cases that had been heard at the province's Court of Appeal. It involved interpretation of the Federal Divorce Act, Federal Child Support Guidelines and the Alberta Parentage and Maintenance Act. The Alberta law imposes a three-year limit on the retroactivity of the award.

The justices agreed that parents have an obligation to support their children. A child has the right to support that varies with changes of income. A recipient parent need not show that hardship has resulted from failure to pay.

The justices recognize that undue hardship could militate against a retroactive order being made as of the date of the change of circumstances.

However, they found no reason to deprive children of the support to which they are entitled by imposing an arbitrary three year judicial limitation period on the amount of child support that can be recovered.

The Supreme Court recognizes that it will be up to the court in each circumstance to determine the date on which the recovery of past support payments begins. However, a judge's discretion should not be limited by the three year judicial limitation period.

D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37