“The Supreme Court of Canada provided further directions when considering retroactive child support claims in its decision in Michel v Graydon 2020 SCC 24 (CanLII), 2020 S.C.C. 24. These include:
o The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).
o Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).
o Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing obligations and recover monies owed but unpaid.
o Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (par. 132).
o The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it because child support is a continued obligation owed independently of any statute or court order. While a court may forgive a child support debt, it remains true that such a debt is owed from the moment it ought to have accrued – no matter the length of the delay.
o Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their income increases. At any given point in time, the payor knows what their support obligation should be, while the recipient parent may not (par. 32). Failure to disclose material information is the cancer of family law litigation (par. 33).
o The failure to disclose annual increases in income and pay the proper amount of child support eliminates any need to protect the payor’s interest in certainty (par. 34).
o The effective notice date is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (par. 36). In D.B.S., the court established that the date to which a child support order should be retroactive is, by default, the date when the effective notice was given to the payor (par. 118). This is the date as of which the child support obligation ought to be enforced. It is explicit in the majority’s judgment that the date of effective notice constitutes a compromise between the date of the recipient’s Application for child support and the date the amount of child support ought to have increased (par. 127).
o D.B.S. set a “soft limit” or rough guideline of recovery of three years (par. 127).
o The idea behind some form of notice is fairness. It is about having and sharing accurate information so everyone can meet their legal obligations and plan accordingly. Payors should rely on the fact that the payments made in good faith and based on accurate information are meeting their legal obligations. Recipient parents should be able to rely on the fact that the amounts paid are owed (par. 128).
o It is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support by the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (par. 130 and 131).”