“First, I do not read D.B.S.as establishing any such “deemed blameworthiness at law” principle. The Supreme Court of Canada made clear that blameworthy conduct on the part of a payor spouse is an important factor in the retroactive support analysis, that what is “blameworthy” conduct is to be considered in an expansive fashion, and that a payor parent who knowingly diminishes his or her child support (including a failure to make reasonable upward adjustments in support where warranted) should not be allowed to profit from such conduct: paras. 105-107. However, a failure to increase support automatically does not necessarily amount to blameworthy conduct, which requires some form of conscious choice to ignore parental support obligations: paras. 107-108.
Whether conduct is “blameworthy” is a question of fact or at least of mixed fact and law. It is a subjective question, informed by certain objective indicators: D.B.S., at para. 108. Here, the trial judge made no finding that the respondent had engaged in any blameworthy conduct. Indeed, he found that the respondent had “acted reasonably in his efforts to support his children” and had “made no attempt to defeat [his] obligations to look after the family”. These findings are not consistent with blameworthy conduct and are entitled to deference. Even accepting that the respondent failed to fulfill his obligations by not being more alert to increasing his support payment commensurate with his increasing income, there were other factors in play which the trial judge took into account, as outlined above. In addition, the residential situation respecting the children was somewhat fluid during these periods.”