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Child Support - The Date of Effective Notice

January 27, 2022

British Columbia

,

Canada

Issue

How does the court determine the retroactive starting date for child support arrears?

Conclusion

Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive:

1. the date when an application was made to a court;

2. the date when formal notice was given to the payor parent;

3. the date when effective notice was given to the payor parent; and

4. the date when the amount of child support should have increased.

The Supreme Court of Canada adopted the date of effective notice as a general rule. Effective notice does not require the recipient to start a case; all that is required is that the topic be broached. Once that has been done, the payor can no longer assume the status quo is fair. (D.B.S. v. S.R.G)

By awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. The payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. (D.B.S. v. S.R.G)

In achieving a balance between the support payor’s interest in certainty with the need for fairness to the child and flexibility, the Court is to take into account the following four factors:

a) the reasons for the recipient’s delay in seeking child support;

b) the conduct of the support payor;

c) the past and present circumstances of the child, including the child’s needs at the time support should have been paid; and

d) whether a retroactive order will entail hardship.

None of these factors is decisive and all should be considered. (Garcha v. Singh)

In a case involving an original award for child support, as opposed to a variation application, absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. The non-custodial parent’s interest in certainty is generally not very compelling here. (D.B.S. v. S.R.G)

The person who seeks a DNA test to establish paternity should not be entitled to avoid responsibility for child support during the period the parties were awaiting the results. (Garcha v. Singh)

In R.P. v. H.K., the parties had a casual intimate relationship for approximately one year, which had ended before the mother discovered she was pregnant. The child was born in July 2011. The father did not meet the child for the first time until she was about one year old. The mother led evidence that she was afraid to ask the father for child support and that the father offered to pay child support at one point. The Court did not find the mother's evidence in this area credible and found that it was probable that the mother did not raise the issue of the father paying child support until she started the action. The father was substitutionally served with the mother's claim for child support in January 2013, but claimed he had no actual notice of the claim until he was personally served with a final order for child support in September 2013. In November 2013, DNA testing confirmed the child's parentage and the father commenced paying child support voluntarily as of December 2013. Ballance J. took into account the length of the mother's delay in pursuing her claim and the hardship of a retroactive order on the father, who had suffered a workplace accident and whose ability to work in the future was in question, and ordered the father to pay child support retroactively to October 2013.

In Simpkins v Kurz, the father appealed an order by the Provincial Court that he pay child support retroactive to the date of the birth of his child. The parties had a relationship that lasted only a few months and resulted in the birth of one child in July 2015. The mother gave no notice of her dissatisfaction with the parties’ informal sharing of the child’s expenses until October 2016. Holmes J. found that the trial judge considered all the relevant factors when making the retroactive award and dismissed the appeal. Specifically, while the trial judge did not expressly identify any “blameworthy” conduct on the father's part that supported an award pre-dating effective notice to him of the mother’s claim, the father did delay taking on responsibility for child support until scientific testing established that he was the child’s father, as the judge noted. Holmes J. also found the evidence of the father with respect to the informal sharing of expenses did not establish that it was reasonable for the father to have believed throughout that he was acquitting himself of his financial obligation toward the child.

Law

The leading case on retroactive awards of child support is the decision of the Supreme Court of Canada in D.B.S. v. S.R.G, [2006] 2 SCR 231, 2006 SCC 37 (CanLII). This case involved four appeals in which the issue of retroactive child support was raised in the context of applications by the recipient parent for child support or increased child support. Bastarache J. articulated the core principles that animate the support obligations that parents have towards their children:

38 The contemporary approach to child support was delineated by Kelly J.A. in Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130. In that case, the Ontario Court of Appeal established a set of core principles that has been endorsed by this Court in the past and continues to apply to the child support regime today: see Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857; Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670. These core principles animate the support obligations that parents have towards their children. They include: child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.

Bastarache J. went on to discuss the jurisdiction of the courts to make a retroactive order for child support in the context where it is an original award of child support as opposed to a variation of a previous order or agreement:

5.2.2.3 Awarding Retroactive Support Where There Has Not Already Been a Court Order for Child Support to Be Paid

80 Unlike the previous two situations, in this third one, the status quo does not involve any existing payment of child support. This fact immediately differentiates the present context in a very important way: absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. The non-custodial parent’s interest in certainty is generally not very compelling here.

81 Jurisdiction to award retroactive child support in this circumstance is found in s. 15.1 of the Divorce Act and s. 16 of the Parentage and Maintenance Act. In the Alberta statute, the legislature simply decrees that an order may be made for payments for the maintenance of the child. Similarly, in the Divorce Act, Parliament allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage”: s. 15.1(1). There is therefore no restriction in either statute as to the date from which the court may order that the award take effect.

82 In my view, the legislatures left it open for courts to enforce obligations that predate the order itself. This interpretation is consistent with the Guidelines, which are meant to “establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation” (s. 1(a)). So long as the court is only enforcing an obligation that existed at the relevant time, and is therefore not making a retroactive order in the true sense, I see no reason why courts should be denied the option of making this sort of award.

83 It is true that the term “retroactively” is absent from s. 15.1 of the Divorce Act, while Parliament used this explicit wording to demonstrate its intention in s. 17. But I believe this drafting choice can be explained based on my reasoning above. Neither in the case of a retroactive variation order nor in the case of a retroactive original order is the court creating a new obligation for the payor parent and applying it after the fact. However, in the case of a retroactive variation order, the original order itself is indeed being varied retroactively: in the strictest, literal sense, the court order that stated a certain amount was due on a certain date is now being altered — after that date has passed — to state that a greater amount was due. The obligation to pay the greater amount was always present, but the original order had to be changed to reflect that. This feature is not present in the case of retroactive original orders. It is for this reason that I believe Parliament felt it unnecessary to resort to language permitting retroactivity.

84 As is the case for awards varying existing court orders and awards altering previous child support agreements between the parents, courts will have the power to order original retroactive child support awards in appropriate circumstances.

Lastly, Bastarache J. adopted the date of effective notice as the general rule for the date to which a retroactive award should be made:

5.4.1 Date of Retroactivity

118 Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.

119 Separation is a difficult time for families. But especially when the interests of children are at stake, it is vital that parents resolve matters arising out of separation promptly. The Guidelines and similar provincial schemes facilitate this task by providing a measure of consistency and predictability in child support matters. Still, as I have noted above, these child support regimes do not go so far as to provide for automatically enforceable support orders. Whether dealing with an original order, or circumstances that may merit a variation, the responsibility always lies with parents to negotiate the issue honestly and openly, with the best interests of their children in mind.

120 Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of support have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigation can be costly and hostile, with the ultimate result being that fewer resources — both financial and emotional — are available to help the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts must ensure that parents are not penalized for treating judicial recourse as a last resort. Accordingly, the first two start dates for retroactive awards — i.e., the date of application to court and the date of formal notice — ought not be used. So long as the enforcement of child support obligations is triggered by formal legal measures, a perverse incentive is created for recipient parents to avoid the informal resolution of their disputes: MacNeal v. MacNeal (1993), 1993 CanLII 9310 (ON SC), 50 R.F.L. (3d) 235 (Ont. Ct. (Gen. Div.)); Steinhuebl v. Steinhuebl, 1970 CanLII 411 (ON CA), [1970] 2 O.R. 683 (C.A.). A recipient parent should not have to sacrifice his/her claim for support (or increased support) during the months when (s)he engages in informal negotiation: Chrintz; see Dickie v. Dickie (2001), 2001 CanLII 28140 (ON SC), 20 R.F.L. (5th) 343 (Ont. S.C.J.).

121 Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.

122 Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child’s entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support.

123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not 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. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

125 The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

In Loughlean v. Regehr, 2018 BCSC 1950 (CanLII), the child was conceived because of a brief liaison between the parties in the summer of 1997. He was in the custody of his mother since birth and had no relationship whatever with his father. In the 18 months following the child's birth, some communications occurred between the parties respecting paternity issues and support but thereafter no contact of any sort occurred for almost 18 years. The father told the mother that he required a DNA test to determine paternity, after which he moved to Yellowknife and evaded contact with the mother. The mother finally gave up trying to contract the father and did not resume her claim against the father until the child, at 18, decided he wanted to meet his father. Proceedings were commenced pursuant to the Family Law Act in June of 2017 and paternity testing was conducted and confirmed the child's parentage. Kent J. found that it was appropriate in the circumstances to order child support retroactive to three years prior to the "second" formal notice, which occurred in June 2017:

[70] The Court in D.B.S. recognized four alternative dates to which an award for child support might be made retroactive. In order of recency they are:

• the date the application for child support is made to the court;

• the date when "formal notice" was given to the payor parent, i.e. initiation of legal proceedings;

• the date when "effective notice" was given to the parent ("any indication by the recipient parent that child support should be paid, whether at first instance or in an increased amount"); and, lastly

• the date when the support should have been paid (whether at first instance or on an increased basis).

[71] The Supreme Court of Canada adopted the date of "effective notice" as the general rule for retroactive child support awards, provided it is not followed by "a prolonged period of inactivity". If such inactivity occurs, "it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent", i.e. the institution of legal proceedings (para. 123).

[72] Notwithstanding the general rule, the Court acknowledged that there may be circumstances warranting that the date of retroactivity should be the date on which "support should have been paid", whether at first instance or as increased support. "This situation can most notably arise where the payor parent engages in blameworthy conduct", in which case the court may wish to emphasize the principle that "a payor parent should not be permitted to profit from his/her wrongdoing" (paras. 124, 125).

[...]

Step 2: Date of Retroactivity

[113] There are some unusual circumstances in this case.

[114] First, there was no marriage or spousal relationship between the parties and no order or agreement for child support was issued after the parties' brief relationship came ended. Second, while legal proceedings were instituted in British Columbia in 1998, the order that was issued at the time was provisional and was "of no force and effect" until confirmed by a court in the jurisdiction where Mr. Regehr was residing. And third, although confirmation did not occur, Mr. Regehr was served with the Provisional Order almost immediately and thus learned that he had been declared to be Ethan's father and that he was required to pay child support, albeit on a provisional basis.

[115] D.B.S. established a regime respecting date of retroactivity in the context of the more usual scenario of a payor parent failing to disclose a material change in circumstances resulting in an entitlement to an increased award beyond that mandated in either a court order or a separation agreement. The case did not address the scenario with which we are confronted here and the principles established in D.B.S. must be tailored to resolve the present dispute "in the fairest way possible, and with utmost sensitivity to the situation at hand".

[116] Ms. Loughlean claims that both the "effective" and "formal" notice of a child support obligation occurred back in 1998 and that, accordingly, it is entirely appropriate to award child support retroactive to Ethan's date of birth. Based on the parties' incomes over the years and the relevant Guidelines tables, a retroactive award of "basic" child support for that period would be approximately $128,000 together with a proportionate amount of special and extraordinary expenses over the same period (calculated to be approximately $47,000), i.e. an aggregate award of some $175,000.

[117] For his part, Mr. Regehr says any blameworthy conduct on his part does not justify a 18-year retroactive award for child support. He points to Brown v. Kucher where, in approximately similar circumstances, the date of retroactivity was the date of "effective notice" (in this case, claimed to be January 30, 2017). He also emphasizes the Court of Appeal's statement:

[31] ... An award retroactive to a child's birth date might conceivably be appropriate where the payor's conduct is at the high end of moral blameworthiness and where the child is considerably younger, but this was not such a case. [Emphasis in original.]

[118] I agree with Ms. Loughlean that both effective and formal notice of a child support obligation was given to Mr. Regehr in 1998. However, she made a deliberate decision not to pursue enforcement of support shortly thereafter and there was a very prolonged period of inactivity following the effective/formal notice. This delay offsets to a large degree, although not entirely, the blameworthy conduct on the part of Mr. Regehr, which I consider to have been substantial. While Mr. Regehr "should not be permitted to profit from his wrongdoing", this consideration is counterbalanced to some degree by the economic hardship he will encounter as a result of any substantial judgment against him.

[119] In D.B.S. the Court noted that, absent blameworthy conduct, it would be inappropriate to make a retroactive award for more than three years before formal notice was given to the payor parent. It also suggested that periods of unreasonable delay in enforcing child support can be excluded in the calculation of any award.

[120] In the result, I find that the date of retroactivity in this case should be three years before the "second" formal notice, the Notice of Family Claim in the present proceedings, was issued on June 15, 2017. This excludes a substantial portion of the delay by Ms. Loughlean in seeking enforcement while at the same time expressing disapproval of Mr. Regehr's blameworthy conduct in a manner sensitive to both Ethan's deprivation of financial support in the past and to the hardship that may be caused in Mr. Regehr's new household.

In Garcha v. Singh, 2017 ONCJ 117 (CanLII), the parties did not cohabit. The father moved to Ontario to attend university before the child was born. The mother informed the father immediately upon learning that she was pregnant and again after the child was born in November 2013. As the Respondent did not acknowledge responsibility for the child, the mother started a child support case in Ontario in July 2014. The original notice of hearing was served upon the father on December 24, 2014. DNA testing was ordered on February 2, 2015 and was completed by the parties on May 27, 2015, but there was a delay in receiving the test results and the father was not served with the test results until March 2016. In August 2016, the Court made an order for prospective child support but requested additional evidence in respect of the mother's claim for retroactive support. Tobin J. found that the mother's evidence was unclear respecting the date she raised that the subject of child support with the father prior to starting the action. The Court determined that the very latest date the father could have learned of the claim was the date he was served with the notice of hearing and the child support order was made retroactive to that date:

[30] The Supreme Court of Canada in D.B.S v. S.R.G.; Laura Jean W. v. Tracey Alford R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the principles and factors to be applied in determining a retroactive child support claim. Those principles and factors relevant to this case are summarized as follows:

1. Parents have an obligation to support their children;

2. The amount of support depends upon the amount of a parent’s income;

3. The parent’s obligation to pay and the child’s right to support exist independent of statute;

4. Parents who do not pay child support based on their income have not fulfilled their obligation to their children;

5. Where a parent has not fulfilled his or her obligation, it is open to the Court to award child support in respect of a period prior to the date original court proceedings are brought;

6. In deciding whether to make a retroactive order for child support, the Court must balance the support payor’s interest in certainty with the need for fairness to the child and flexibility;

7. In cases where there is no court order or agreement, it is unreasonable for a non-custodial parent to believe that he or she was meeting his or her child support obligations if the amount of child support is not based on that person’s income. The non-custodial parent’s interest in certainty is not very compelling in this circumstance;

8. In achieving this balance, the Court is to take into account the following four factors:

a) the reasons for the recipient’s delay in seeking child support;

b) the conduct of the support payor;

c) the past and present circumstances of the child, including the child’s needs at the time support should have been paid; and

d) whether a retroactive order will entail hardship.

9. None of these factors is decisive and all should be considered;

10. If the Court determines that a retroactive award should be ordered, generally the start date will be the date of effective notice by the recipient; and

11. Effective notice does not require the recipient to start a case; all that is required is that the topic be broached. Once that has been done, the payor can no longer assume the status quo is fair.

[...]

Start date of child support

[55] Having regard to all of these circumstances, it is proper to award child support for a period of time predating the commencement of the Windsor case, that is, prior to March 8, 2016.

[56] The Applicant seeks child support from the date the child was born. The claimant’s evidence is not clear about the date she raised that the subject of child support with the respondent prior to starting the London case.

[57] The Respondent submits that the appropriate start date should be March 2016 because that is the date when he first learned of the DNA test results.

[58] I do not agree that the Respondent’s child support obligation should start when test results were made known to him. A person’s entitlement to receive child support should not be prejudiced because of delay in paternity test results being revealed, that were not caused by him or her. The person who seeks a DNA test to establish paternity should not be entitled to avoid responsibility for child support during the period the parties were awaiting the results.

[59] In this case, the Respondent was made aware of the child support claim. His refusal to accept the advice of the Claimant that he was the father – just because he thought it was possible he was not – does not absolve him of his responsibility to support the child. He took a chance in advancing the position that he was not the father. He did not to prepare for the possibility that he was by setting aside child support he might be obliged to pay. The consequences of his not doing so should not be visited upon the child.

[60] On the evidence, the latest date that the Respondent was first made aware of the child support claim was December 24, 2014. This is the date he was first served with the Notice of Hearing and supporting documents issued in connection with the case returnable in London.

[61] In balancing all of the DBS factors, I find that child support should be paid by the Respondent to the Claimant for this child starting January 1, 2015 ending August 31, 2016. The start date is the first month following formal notice having been given to the Respondent. It is also the effective date of notice according to him. An end date is required because this Court’s Order of August 31, 2016 provided for the Respondent’s obligation to pay prospective child support starting September 1, 2016.

[62] The monthly amount of table child support will be $360.00 per month based upon the Respondent’s income for child support purposes of $40,699.00 during the period January 1, 2015 to August 31, 2016.

[63] The immediate arrears arising from this Order shall be paid at the rate of $120.00 per month, until paid in full. The start date for the payment of these arrears shall be April 1, 2017 to give the Respondent a brief period to organize his finances. However, if the Respondent is more than 60 days in default of ongoing or arrears of child support, the entire amount of arrears then owing shall immediately become due and payable.

In R.P. v. H.K., 2015 BCSC 1132 (CanLII), the parties had a casual intimate relationship for approximately one year, which had ended before the mother discovered she was pregnant. The child was born in July 2011. The father did not meet the child for the first time until she was about one year old. The mother led evidence that she was afraid to ask the father with child support and that the father offered to pay child support at one point. The Court did not find the mother credible with respect to this evidence and found that it was probable that the mother did not raise the issue of the father paying child support until she started the action. The father was substitutionally served with the mother's claim for child support in January 2013, but claimed he had no actual notice of the claim until he was personally served in September 2013. In November 2013, DNA testing confirmed the child's parentage and the father commenced paying child support voluntarily as of December 2013. Ballance J. took into account the length of the mother's delay in pursuing her claim and the hardship of a retroactive order on the father, who had suffered a workplace accident, and ordered the father to pay child support retroactively to October 2013:

[64] As a general rule, a retroactive child support award should reach back to the date when the recipient parent gave the payor parent effective notice of the intention to seek support. The concept of effective notice does not require that the recipient parent take any formal legal action. All that is necessary is that the topic of child support is broached or that the recipient parent give some other indication that support should be paid. The Court in D.B.S. explained at paras. 122-123:

122 Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child’s entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support.

123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effecti

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