“In D.B.S. the court identified four primary considerations:
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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. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.
In Michel v. Graydon 2020 SCC 24 the Supreme Court recently revisited these principles. The commentary includes the following:
a. Parents know they are liable to pay support in accordance with the Tables, based on their actual income. They know they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic.
b. The obligation to support your child exists even if the other parent has not (yet) started a court case.
c. Retroactive child support is a debt. It represents money that should have been paid. Presumptively, the money is owing and should still be paid, unless there are strong reasons not to do so.
d. Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations.
e. The court must be aware of the gender and social dynamics which permeate child support law. When we assess the reasonableness of actions and behaviours by support recipients – and the reality is that they are predominantly women – we must take into account all of their experiences, challenges, vulnerabilities, financial limitations, fears, danger, and perceptions as to their actual options.
f. The neglect or refusal to pay child support is strongly linked to child poverty and female poverty.
g. There is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child support obligations.
Michel v. Graydon refines the approach to be taken on the issue of delay:
a. Rather than ask whether there was a “reasonable excuse” for any delay in bringing an application, the court should examine whether the reason for the delay is “understandable”.
b. A delay, in itself, is not inherently unreasonable. The mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted.
c. 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. A delay is likely to be more understandable if it is motivated by any one of the following reasons:
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- Fear of reprisal/violence from the other parent.
- Prohibitive costs of litigation or fear of protracted litigation.
- Lack of information or misinformation over the payor parent’s income.
- Fear of counter-application for custody.
- The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
- Illness/disability of a child or the custodian.
- Lack of emotional means.
- Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
- Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
- The deliberate delay of the application or the trial by the payor.
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e. Delay by a recipient does not constitute a waiver or abandonment of a right to claim the appropriate amount of support which should have been paid.
f. It is generally a good idea to seek child support as soon as practicable. But it is unfair to bar parents from applying for the financial support they are entitled to, simply because they put their safety and that of their children ahead of their financial needs; or because they did not realistically have the ability to access justice earlier.
g. Even if the delay is unreasonable, this does not negate blameworthy conduct by the payor. Indeed, blameworthy conduct may have caused or contributed to the delay.
h. Delay is not determinative. It is one factor and should not be given undue weight.”