“A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 22. The mother issued her application on March 6, 2019. Accordingly, her claim for retroactive support covers the period from January 1, 2017 until March 2019 – 2 years and 2 months.
The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
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- Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
- The conduct of the payor parent.
- The circumstances of the child.
- The hardship that the retroactive award may entail.
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None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.
Retroactive awards are not exceptional. They can always be avoided by proper payment (D.B.S. par. 97).
The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where the recipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice (D.B.S., par. 101).
The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor’s own interests over the child’s right to an appropriate amount of support (D.B.S., par. 106). The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations. (D.B.S., par. 108).
Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5), but where the payor engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum. (D.B.S. par. 134)
Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121). In this case, the date of effective notice is the same as the date of formal notice – when the application was issued on March 6, 2019.
It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. See: D.B.S., pars. 95 and 96); Titova v. Titov, 2012 ONCA 864, par. 37; Baldwin v. Funston, 2007 CarswellOnt 3168 (C.A.)
Courts should attempt to craft the retroactive award in a way that minimizes hardship. Hardship to the payor parent may be mitigated by a judgment which allows for payment of an award in instalments: See: D.B.S., at para. 116; Connelly v. McGouran, 2007 ONCA 578.”