“Ms. Perez’s request pursuant to section 37(2.1) of the Family Law Act, for an order for child support adjustments based on Mr. Chiris’ actual income for the years 2011 through 2017 places her squarely into a D.B.S. S.R.G, 2006 SCC 37 (S.C.C.) (hereinafter referred to as D.B.S.) analysis.
In D.B.S., the Supreme Court of Canada identified that the making of a retroactive support order is discretionary and there are a number of factors that a court should consider before making one. They are:
- Reasonable excuse as to why support was not sought earlier;
- Conduct of the payor parent;
- Circumstances of the child; and,
- Hardship occasioned by a retroactive award.
The Supreme Court of Canada revisited these factors in the recently released decision in the case of Michel v. Graydon, 2020 SCC 24. With respect to the issue of delay in making an application, the court stated in paragraph 111 that “the focus should be on whether the reason provided is understandable” rather than whether the support recipient had a “reasonable excuse” for the delay. Further, at paragraph 113, the court held: “Rather, a delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made (D.B.S., at para. 101).”
In this case, Ms. Perez’s reason for delay is that she did not understand that she had to request annual financial disclosure from Mr. Chiris in writing and apply for a change in order to receive it. This is not an unreasonable understanding on her part. That she was not proficient in English at the time of the signing of the agreement, that her OW worker was assisting the parties with the agreement, that she obtained no legal advice and that she felt intimidated by Mr. Chiris’ last communication with her, only support the reasonableness of her understanding. A generous appreciation of the social context leads me to the conclusion that Ms. Perez’ delay in seeking to increase the support payable for Samuel is understandable.
With respect to the conduct of the payor parent, the court stated at paragraph 115 of Michel: “D.B.S. purposively provided an expansive definition of blameworthy conduct, being “anything that privileges the payor parent’s own interests over [their] children’s right to an appropriate amount of support (para.106)”.
At paragraph 116, the court states:
[116] …The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often the root cause of a delayed application. Indeed, in D.B.S., the Court recognized at para. 124 that “[n]ot disclosing a material change in circumstances – including an increase in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct.” It further commented that “a payor parent cannot use [their] informational advantage to justify [their] deficient child support payments” and at para. 106 that “a[a] payor parent cannot hide [their] income increases from the recipient parent in the hopes of avoiding larger child support payments”.”