Retro to go forward.

Retroactive child support has been a thorny issue in Canadian family law for many years. When should support be ordered retroactively, what factors should a judge consider, how far back should such an order go, what should the amounts be? Court decisions on this topic have varied widely across Canada, so that it is difficult for lawyers to predict what will happen when parents go before a judge asking these questions. The unpredictability and uncertainty of the law was highlighted this year when the Alberta Court of Appeal and the Ontario Court of Appeal gave contradicting judgments about retroactive child support.

In January 2005, the Alberta Court of Appeal decided three similar cases dealing with retroactive child support applications. Justice Marina Paperny noted "... the lack of a consistent principled approach to the issue of retroactive support continues to cause an unacceptable level of uncertainty in this area of the law, and a concomitant rash of litigation on the issue." Writing for the Court of Appeal panel, she set out a list of factors to be considered in cases asking for retroactive child support

* a child is entitled to support. Need is presumed

* the Child Support Guidelines presume an ability to pay on the part of the payor in accordance with his or her income as established by the Guidelines

* blameworthy conduct on the part of the payor is not required

* the payee does not need to demonstrate that he or she has used his or her capital to make ends meet

* notice of an intention to seek an increase in child support is not a prerequisite to a retroactive award

* whether there is an unreasonable burden placed on the payor should not be assumed but must be established; the burden must be unable to be alleviated by creative payment options; the reason for or the cause of the inability to pay must be considered; and any burden must be balanced against the corresponding deprivation to the payee and the child

* a lump sum payment is not precluded merely because it "redistributes capital"

* the date that the payor's income increases as contemplated by the Guidelines is presumed to be the date for the beginning of a retroactive award unless the payor has satisfied the additional financial obligation in some other way, has taken all reasonable steps to fulfill the obligation, has a previous arrangement for child support that considers the Guidelines, or the payee has failed to act diligently without reasonable excuse.

Justice Paperny also took some pains to dispel the so-called "one-year rule", whereby judges would not order retroactive support for a period beyond one year. She noted, "... no authority was cited for the proposition that this 'rule' should apply to child support. Nevertheless, despite its dubious provenance and evident unfairness, this 'rule' was imported into Canadian law and texts, thereby appearing to legitimize it. This Court totally rejected this 'one-year' rule in Haisman v. Haisman. We recognized that the so-called rule against hoarding was an antiquated notion that had no place in the law on child support. To accept it would be to punish children and payees while rewarding payors who thwarted court orders. A court ought not to sanction such an approach."

In April, 2005, the Court of Appeal in Ontario looked at this issue quite differently in the case of Park v. Thompson. The Court indicated that it was aware that the Alberta Court of Appeal had recently issued a series of judgments dealing with retroactive child support. The Court commented, "In the trilogy, the Alberta Court of Appeal has taken a very different approach to retroactive child support, and, for example, has presumed need and an ability to pay on the part of the payor and has not required any demonstration of blameworthy conduct on the part of the payor or encroachment on capital by the custodial parent ... I have not been persuaded that this is an appropriate time to reconsider the issue, notwithstanding the thoughtful discussion in the Alberta trilogy." Indeed, the Ontario Court of Appeal endorsed a very different list of factors to be considered, based on a 1999 BC Court of Appeal case. The Ontario Appeal Court's factors in favour of making an award included

* need on the part of the child and ability to pay on the part of the payor

* need on the part of the custodial parent to encroach on his or her capital

* notice to the payor of an intention to pursue support

* an excuse for any delay in bringing an application for child support

* some blameworthy conduct on the part of the payor, such as incomplete or misleading financial information.

The Court of Appeal noted that retroactive awards should not be made: if such an order would place an unreasonable or unfair burden on the payor; if the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and if there was a significant, unexplained delay in bringing the application.

In the Park case, the Court of Appeal overturned the trial judge's order for retroactive child support, ruling

* there was no explanation for the delay by the mother in seeking child support

* the trial judge did not inquire about whether the mother had to encroach on her capital or incur debt in paying the child's expenses

* the trial judge did not consider the father's present ability to pay given his responsibilities for a new family, and whether in all the circumstances of this case, an order for retroactive child support would cause an unfair burden on the father.

The Supreme Court of Canada has agreed to hear an appeal of the Alberta decisions and this is a good thing in light of the contradictory approaches taken by the Alberta and the Ontario Courts of Appeal. A Supreme Court ruling will bring some clarity and certainty to this area of the law, and will assist the courts in all the other provinces to make consistent decisions that benefit Canadian families.

D.B.S.v. S.R.G., 2005 ABCA 2; L.J.W.v. T.A.R., 2005 ABCA 3; Henry v. Henry (2005) 7 R.F.L. (6th) 275 (Alta. C.A.) Park v. Thompson 2005 CANLII 14132 (Ont. C.A.)