“An award for retroactive child support should generally be retroactive to the date when the recipient parent gave the payor parent “effective notice” of their intention to seek an increase in support payments: Hachey, at para. 49, citing S. (D.B.) v. G. (S.R.), 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231 (S.C.C.).
The factors to be considered when deciding whether a variation in child support should be retroactive or not, include:
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- a reasonable excuse for why support was not sought earlier;
- the conduct of the payor parent;
- the circumstances of the child; and
- any hardship that may be occasioned as a result of a retroactive order: Hachey, at para. 57.
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Where the court determines that a retroactive order is appropriate, there are typically four dates to choose from in terms of the date of retroactivity:
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- the date when the application was made to the court;
- the date when “formal notice” was given to the payor parent (e.g., service of a motion to change);
- the date when “effective notice” was given to the payor parent; and,
- the date when the amount of child support should have been increased based on the changed circumstances: see Hachey, at para. 59.
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If there is retroactivity, the award should generally be retroactive to the date of “effective notice”. However, the court usually does not go back more than three years before “formal notice” was given unless the payor parent has engaged in blameworthy conduct: see Hachey, at paras. 60-61 and 93-94.”