“The Family Law Act permits an award of retroactive child support: s. 34(f). Whether the Court retroactively increases child support based on the payor’s increased income raises the principles articulated by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.
Before I consider the application of the D.B.S. principles, I will address the terms of the annual adjustment of child support in the Separation Agreement. I do not find that these terms are such that take this matter outside of the application of the D.B.S. principles into one of contractual enforcement.
I find this for three reasons. First, both parties are in breach of their contractual obligation under the Separation Agreement to exchange annual income disclosure. I acknowledge that Ms. Delulio’s obligation to provide income disclosure is significantly different during this period than Mr. Persi’s, given that her income is not relevant to the determination of the table child support when the children primarily reside with her. However, as a matter of contract, Ms. Delulio is also in breach of the agreement. Second, the agreement does not mandate automatic adjustments to child support. The agreement provides for an adjustment only if a party determines there should be one. Third, the agreement provides for an amount of monthly child support, $448, which is below the table amount payable for Mr. Persi’s annual income of $47,000 (fn: The table amount payable for two children for income of $47,000 under the May 1, 2006 tables was $710/m). This reduction reflects the parties’ agreement that child support is not determined solely by the application of the Child Support Guidelines table amount but may be adjusted to an amount that, using their words, “was appropriate given the circumstances of the parties and the needs of the children.”
I find, therefore, that the D.B.S. principles apply to Ms. Delulio’s claim for retroactive child support. D.B.S. makes it clear that there is no automatic right to retroactive child support, nor is it an exceptional remedy: para 97. Whether retroactive child support will be granted is a matter of judicial discretion. Three major interests in play in retroactive support cases are:
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- The need on the part of the child and the custodial parent for financial support;
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- The payor’s interest in certainty and predictability when financial obligations appear settled; and
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- The need for flexibility to ensure a just result.
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Ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. This focus includes the core principles that apply to child support, such as that child support is the right of the child, and that ultimately the goal is to ensure that children benefit from the support they are owed when they are owed it.
Within these overarching principles, the court should consider the following four factors in determining whether to allow a retroactive claim:
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- Whether there was a reasonable excuse as to why a variation in support was not sought earlier;
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- The conduct of the payor parent;
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- The circumstances of the child and;
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- Any hardship occasioned by a retroactive award.
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The general rules from D.B.S. are that a retroactive child support order should start from the date of formal notice and that it will usually be inappropriate to make a support award retroactive to a date more than three years before the formal notice was given.”