“Jurisdiction to award retroactive original child support in this circumstance is found in s. 15.1 of the Divorce Act which allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage.” There is no restriction in the Divorce Act as to the date from which the court may order that the award take effect: at para. 81.
However, at paras. 88-89 of DBS, the court confirmed that pursuant to the definition of “child of the marriage” in section 2(1) of the Divorce Act, a court only has jurisdiction to make a retroactive original child support award if the child in question is a “child of the marriage” when the application is made – “child support is for children of the marriage, not adults who used to have that status.”
In its preamble to the discussion of the factors to be considered in determining when the discretion to award retroactive original child support should be exercised, the court in DBS, at para. 97, emphasized that retroactive original child support awards should not be considered exceptional:
It cannot be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.
At para. 99, the court added that none of the factors to be considered before awarding retroactive child support are decisive. A trial court is required to conduct a holistic view of the matter and decide each case based on its particular factual matrix.”