“With respect to the third D.B.S. factor – the circumstances of the child – Michel v. Graydon included the following:
a. If a child previously experienced hardship – or if the child needs support at the time of the hearing — this weighs in favour not only of an award, but also of extending the temporal reach of the award.
b. But there need not be any determination of hardship as a pre-requisite to making a retroactive award.
c. A payor’s previous support obligation does not disappear when the child no longer requires support. Payors should not perceive an incentive to pay inadequate support, in the hope that retroactivity will hinge on the recipient’s ability to prove hardship.
d. Quite commonly the recipient parent caring for the child will personally absorb the hardship created by inadequate support. A primary care parent who prioritizes their child’s well-being should not receive less support as a result of choices that protect the child.
e. The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope.
f. The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support.
Michel v. Graydon stated the following in relation to hardship:
a. While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the childand the recipient parent from not ordering the payment of sums owing but unpaid.
b. If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship.
c. The court must remember that the payor had the benefit of the unpaid child support for the full period of time that it was unpaid. Those monies may have funded a preferred lifestyle or the acquisition of property. In contrast, if inappropriate support was being paid, the recipient parent may have been deprived of lifestyle or property opportunities, because they were forced to spend their money (and perhaps incur indebtedness) for the benefit of the child.
d. In all cases, hardship may be addressed by the form of payment.”