Fathers Resources International

                                                SUPREME COURT OF CANADA

Between:

D.B.S.

Appellant

and

S.R.G.

Respondent

and between:

T.A.R.

Appellant

and

L.J.W.

Respondent

and between:

Daryl Ross Henry

Appellant

and

Celeste Rosanne Henry

Respondent

and between:

Kenneth Hiemstra

Appellant

and

Geraldine Hiemstra

Respondent

Coram: McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella and Charron JJ.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

______________________________

d.b.s. v. s.r.g.

D.B.S.                                                                                                               Appellant

v.

S.R.G.                                                                                                            Respondent

‑ and ‑

T.A.R.                                                                                                               Appellant

v.

L.J.W.                                                                                                            Respondent

- and -

Daryl Ross Henry                                                                                            Appellant

v.

Celeste Rosanne Henry                                                                                Respondent

- and -

Kenneth Hiemstra                                                                                            Appellant

v.

Geraldine Hiemstra                                                                                       Respondent

Indexed as:  D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra

Neutral citation:  2006 SCC 37.

File Nos.:  30808, 30809, 30807,  30837.

2006:  February 13; 2006:  July 31.  

Present:  McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for alberta

Family law — Maintenance — Child support — Retroactive support — Whether court can make retroactive child support order — If so, in what circumstances is it appropriate to do so — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1, 17, 25.1 — Federal Child Support Guidelines, SOR/97‑563, ss. 1-4, 9, 10, 14, 25 — Parentage and Maintenance Act, R.S.A. 2000, c. P-1.

These four appeals raise the issue of retroactive child support.  In D.B.S. v. S.R.G., the parents had three children in the course of their 10‑year common law relationship.  Following their separation  in 1998, the father  had sole interim custody, but the parties subsequently entered into an informal shared custody arrangement.  Neither party paid support to the other, although the father’s income substantially exceeded the mother’s.  In 2003, the mother brought proceedings under Alberta’s Parentage and Maintenance Act for retroactive and ongoing support.  The chambers judge awarded the mother prospective support but declined to make a retroactive award because their household incomes were at that time approximately the same and because the father had clearly contributed to the children’s support since the separation.  Further, he was not satisfied that it would benefit the children to make such an award, and  stated that retroactive support would be inappropriate in the circumstances.  The Court of Appeal allowed the mother’s appeal, set out factors that a court should consider in deciding whether to make a retroactive award, and sent the matter back to the chambers judge for reconsideration.

In T.A.R. v. L.J.W., the parents also had three children in the course of their common law relationship.  Following the parents’separation in 1991, the children lived with the mother.  Some months later, the father started paying support of $150 per month pursuant to a maintenance agreement, which was increased to $300 a month in April 2003 pursuant to a consent order.  The mother is now married  and her annual household income was approximately $50,000.  The father was living in a common law relationship with a new spouse and her  two children.  He was earning $23,000 per annum.  In June 2003, the court awarded child support in the amount of $465 per month.  In dismissing the mother’s claim under Alberta’s Parentage and Maintenance Act for support retroactive to 1999, representing the difference between the child support paid and the $465 amount, the chambers judge considered the hardship such an award would cause, the father’s meagre income, the fact that he had honoured his support obligations and that he had incurred substantial expenses in exercising his access rights.  The Court of Appeal held that the matter should be returned to the chambers judge to consider whether the burden of a retroactive award could be alleviated by a creative award and on whom the burden of the unfulfilled obligation should fall.

In Henry v. Henry, the parents married in 1984 and were divorced in 1991.  After they separated their two children resided with the mother, and the divorce judgment ordered the father to pay $700 per month in child support.  In February 2000, the mother signalled an intention to seek increased support.  Although the father raised his support payments in 2000 and 2003, the amounts he paid were substantially below those set out in the Federal Child Support Guidelines (“Guidelines”).  The mother was unaware that his income had increased dramatically since the divorce, while she was experiencing financial difficulties.  The father had refused to provide financial assistance at various times when requested, responding to the mother with acrimony and intimidation.  The mother applied to vary the child support payments in February 2003.  The chambers judge granted her application for retroactive support, deciding that the award should be retroactive to July 1, 1997 and that it should be based on the father’s applicable Guidelines income.  The majority of the Court of Appeal upheld the decision, but one judge dissented on the issue of the date to which the order should be made retroactive.

In Hiemstra v. Hiemstra,  the parents were divorced in 1996.  The two children of the marriage went to live with the father, and the mother paid child support.  In November 2000, the son moved in with the mother and the child support payments ceased.  Although the father had a substantial income, he  did not comply with the mother’s April 2003 request that he contribute to their daughter’s college expenses.  By February 2004, the mother was supporting both children; three months later, she applied for  retroactive child support.  The chambers judge held that  this was an appropriate circumstance for a retroactive  award, and he calculated it from January 1, 2003 onward, to be paid in the amount of $500 per month, as a “reasonable compromise” that best fit the situation of the parties.  The Court of Appeal upheld the decision.

Held:  The appeals in D.B.S. and T.A.R. should be allowed and the decisions of the chambers judges restored.

Held:  The appeals in Henry and Hiemstra should be dismissed.

Per McLachlin C.J. and Bastarache,  LeBel and Deschamps JJ.:  Parents have an obligation to support their children in a manner commensurate with their income, and this obligation and the children’s concomitant right to support exist independently of any statute or court order.  To determine whether a retroactive award would be appropriate, the court must first consider the prevailing legislation and child support scheme.  To the extent that the federal scheme has eschewed a purely needs‑based analysis, this free‑standing obligation implies that the total amount of child support owed will generally fluctuate based on the payor parent’s income.  Thus, under that scheme, payor parents who do not increase their child support payments to correspond with their incomes will not have fulfilled their obligations to their children.  However, the provinces remain free to espouse a different paradigm.  When an application for retroactive support is made, therefore, it will be incumbent upon the court to analyse the statutory scheme pursuant to which the application was brought. [54]

The fact that the current child support scheme under both the Divorce Act and Alberta’s Parentage and Maintenance Act are application‑based does not preclude courts from considering retroactive awards.  While child support orders should provide payor parents with the benefit of predictability, and a degree of certainty in managing their affairs, such an order does not absolve the payor parent — or the recipient parent — of the responsibility of continually ensuring that the children are receiving an appropriate amount of support.  As the circumstances underlying the original award change, the value of that award in defining the parents’ obligations necessarily diminishes.  In situations where payor parents are found to be deficient in their support obligations to their children, it will be open for the courts, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary the existing orders retroactively.  The consequence will be that amounts that should have been paid earlier will become immediately enforceable.  Similarly, a court may award retroactive support where there has been a previous agreement between the parents.  Although such agreements should be given considerable weight, where circumstances have changed and the actual support obligations of the payor parent have not been met, the court may order a retroactive award so long as the applicable statutory regime permits it.  Under the Divorce Act or the Parentage and Maintenance Act, courts also have the power to order original retroactive child support awards in appropriate circumstances.  Lastly, where support, including retroactive support, is requested pursuant to the Parentage and Maintenance Act, a court will not have jurisdiction to order support if the child in question was over 18 at the time the application was made, or if certain expenses occurred more than two years in the past.  Under the Divorce Act, a court will not be able to make a retroactive award if the child in question is no longer a “child of the marriage”, as defined in s. 2, when the application is made. [59] [74] [78] [84] [87-89]

In determining whether to make a retroactive award, a court should strive for a holistic view of the matter and decide each case on the basis of its particular facts.  The payor parent’s interest in certainty must be balanced with the need for fairness to the child and for flexibility.  In doing this, the court should consider the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship.  Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past.  Effective notice does not require the recipient parent to take 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.  However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award.  Finally, the court must ensure not only that the quantum of a retroactive support award is consistent with the statutory scheme under which it is operating, but also that it fits the circumstances. [99-135]

In view of this analysis, the following dispositions should be made in the instant cases.  In D.B.S., retroactive support is not justified.  The two household incomes were roughly equal and there was no blameworthy conduct on the part of the payor father.  More importantly, the chambers judge held that a retroactive award would be “inappropriate and inequitable” and would not benefit the children.  In these circumstances, deference is owed to the chamber judge’s order.  Similarly, in T.A.R., the chambers judge’s decision not to grant retroactive support also merits deference.  He found that the father’s conduct was not deceitful or blameworthy and that he had honoured his obligation faithfully.  Although the chambers judge did not consider all the factors, he took a holistic view of the matter and arrived at  the conclusion that this was not an appropriate case to grant retroactive support. [139-141] [144-145]

In Henry, the retroactive award is affirmed.  There was no unreasonable delay by the mother in applying for an increase in support.  She  broached the topic of increasing the father’s child support obligations to the best of her ability, given her ignorance of her ex‑husband’s actual income and the way he intimidated her.  The father acted in a blameworthy manner:  even though he was  aware that his income had risen substantially since the original order was rendered and that his children were living at levels commensurate with his ex‑wife’s low income, he refused to raise his payments to levels appropriate to his income.  The chambers judge’s retroactive award would not impose too great a burden on the father, and the children should benefit from this award.  The fact that the eldest child affected by the award was no longer a “child of the marriage” when the notice of motion for retroactive support was filed had no effect on the court’s jurisdiction to make a retroactive child support order under the Divorce Act.  Because the ex‑husband did not disclose his increases in income to his ex‑wife earlier, she was compelled to serve him with a notice to disclose in order to ascertain his income for the years relevant to this appeal.  This procedure, contemplated in the Guidelines, sufficed to trigger the court’s jurisdiction under the Divorce Act.  Since the procedure was completed prior to the time the eldest child ceased being a child of the marriage, it was appropriate for the court to make a retroactive order for this child. [146-150]

Lastly, in Hiemstra, the chambers judge properly weighed the relevant considerations in deciding upon the award, and his  retroactive order should be affirmed.  Given the father’s substantial income, he cannot be considered blameless in not paying child support.  He did not have a reasonable belief that his support obligation was being fulfilled.  The chambers judge chose to make the award retroactive only to January 1, 2003, despite the father’s failure to provide child support for a longer period of time.  As the date has not been cross‑appealed by the mother, it should not be disturbed. [152-154]

Per Fish, Abella and Charron JJ.:  Parents have a free‑standing joint obligation to support their children based on their ability to do so, and this obligation creates a right in the child.  Because the child’s right to support varies with changes in income, the child’s entitlement to a change in support should not be limited to the date of the recipient parent’s notice of an intention to enforce it.  So long as the change in income warrants different child support from what is being paid, the presumptive starting point for the child’s entitlement is when the change occurred, not when it was disclosed or discovered.  For payor parents, certainty and predictability are protected by the legal certainty that whenever their income changes materially, that is the moment their obligation changes automatically, even if enforcement of that increased obligation is not automatic.  Since the existence of the increased support obligation depends on the existence of the increased income, there is no role for blameworthy conduct in determining the date at which children can recover the support to which they are entitled.  The obligation fluctuates with parental income, not with parental misconduct.  In the same way, the recipient parent need not demonstrate that the failure to pay child support has resulted in hardship for the child.  A presumptive date of entitlement to a change in child support does not, however, eliminate the role of judicial discretion.  It will be up to the court in each circumstance to determine whether the presumptive date has been rebutted.  While undue hardship could militate against a retroactive order being made as of the date of the change of circumstances, there is no reason to deprive children of the support to which they are entitled by imposing an arbitrary three‑year judicial limitation period on the amount of child support that can be recovered.  Such a clear restriction on a child’s entitlement is an unnecessary fettering of judicial discretion and requires an express statutory direction to that effect.  Notwithstanding the differences in approach, there is agreement with the majority’s disposition of the four appeals. [157-179]

Cases Cited

By Bastarache J.

Applied:  MacMinn v. MacMinn (1995), 174 A.R. 261; S. (L.) v. P. (E.) (1999), 67 B.C.L.R. (3d) 254, 1999 BCCA 393; Paras v. Paras, [1971] 1 O.R. 130; Richardson v. Richardson, [1987] 1 S.C.R. 857; Willick v. Willick, [1994] 3 S.C.R. 670; Francis v. Baker, [1999] 3 S.C.R. 250; Horner v. Horner (2004), 72 O.R. (3d) 561; Hickey v. Hickey, [1999] 2 S.C.R. 518;  distinguished:  Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; considered:  M.C. v. V.Z. (1998), 228 A.R. 283; Walsh v. Walsh (2004), 69 O.R. (3d) 577; Marinangeli v. Marinangeli (2003), 38 R.F.L. (5th) 307; Andries v. Andries (1998), 126 Man. R. (2d) 189; Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24; Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550, 2004 SCC 22; C. (S.E.) v. G. (D.C.) (2003), 43 R.F.L. (5th) 41, 2003 BCSC 896;  Hunt v. Smolis-Hunt (2001), 97 Alta. L.R. (3d) 238, 2001 ABCA 229; Tedham v. Tedham (2003), 20 B.C.L.R. (4th) 56, 2003 BCCA 600; Chrintz v. Chrintz (1998), 41 R.F.L. (4th) 219; Passero v. Passero, [1991] O.J. No. 406 (QL); Hess v. Hess (1994), 2 R.F.L. (4th) 22; Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; Dahl v. Dahl (1995), 178 A.R. 119; A. (J.) v. A. (P.) (1997), 37 R.F.L. (4th) 197; Haisman v. Haisman (1994), 22 Alta. L.R. (3d) 56; MacNeal v. MacNeal (1993), 50 R.F.L. (3d) 235; Steinhuebl v. Steinhuebl, [1970] 2 O.R. 683; Dickie v. Dickie (2001), 20 R.F.L. (5th) 343; referred to:  M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Poissant v. Barrette (1879), 3 L.N. 12; Childs v. Forfar (1921), 51 O.L.R. 10;  McTaggart v. McTaggart, [1947] O.J. No. 100 (QL); Malcolm v. Malcolm (1919), 46 O.L.R. 198, aff’d 46 O.L.R. 609; Jackson v. Jackson, [1973] S.C.R. 205; Zacks v. Zacks, [1973] S.C.R. 891; T. (P.) v. B. (R.) (2004), 30 Alta. L.R. (4th) 36, 2004 ABCA 244; Chartier v. Chartier, [1999] 1 S.C.R. 242.

By Abella J.

Referred to:  M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Horner v. Horner (2004), 72 O.R. (3d) 561; Richardson v. Richardson, [1987] 1 S.C.R. 857; Willick v. Willick, [1994] 3 S.C.R. 670; Francis v. Baker, [1999] 3 S.C.R. 250; MacMinn v. MacMinn (1995), 174 A.R. 261; S. (L.) v. P. (E.) (1999), 67 B.C.L.R. (3d) 254, 1999 BCCA 393; Haisman v. Haisman (1994), 22 Alta. L.R. (3d) 56, leave to appeal dismissed, [1995] 3 S.C.R. vi; Paras v. Paras, [1971] 1 O.R. 130.

Statutes and Regulations Cited

Civil Code of Lower Canada, art. 169.

Civil Code of Québec, S.Q. 1991, c. 64, art. 587.1.

Constitution Act, 1867, s. 91(26).

Criminal Code, 1892, S.C. 1892, c. 29, s. 209.

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [am. 1997, c. 1], ss. 2(1) “child of the marriage”, (5), 15.1, 17, 25.1, 26.1(2).

Family Law Act, S.A. 2003, c. F‑4.5, s. 77(2).

Federal Child Support Guidelines, SOR/97‑175 [am. SOR/97‑563; am. SOR/2000‑337], ss. 1, 2, 3, 4, 9, 10, 11, 14, 16, 17, 25.

Parentage and Maintenance Act, R.S.A. 2000, c. P‑1 [am. 2003, c. I‑0.5, s. 58(6); rep. 2003, c. F‑4.5], ss. 7(1), 15, 16, 18.

Authors Cited

Canada.  Department of Justice Canada.  Children Come First:  A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, vol. 1.  Ottawa:  Department of Justice Canada, 2002.

Canada.  Department of Justice.  Federal Child Support Guidelines Reference Manual.  Ottawa:  Department of Justice Canada, 1997.

Canada.  House of Commons.  House of Commons Debates, vol. 133, 1st Sess., 35th Parl., April 25, 1995, p. 11760.

Canada.  House of Commons.  House of Commons Debates, vol. 134, 2nd Sess., 35th Parl., October 1, 1996, p. 4901.

Mignault, Pierre Basile.  Le droit civil canadien, t. 2.  Montréal:  Whiteford & Théoret, 1896.

Payne, Julien D., and Marilyn A. Payne.  Child Support Guidelines in Canada.  Toronto:  Irwin Law, 2004.

Sullivan, Ruth.  Sullivan and Driedger on the Construction of Statutes, 4th ed.  Markham, Ont.:  Butterworths, 2002.

APPEAL from a judgment of the Alberta Court of Appeal (Fraser C.J.A. and Côté and Paperny JJ.A.) in D.B.S. v. S.R.G. (sub nom. S. (D.B.) v. G. (S.R.)) (2005), 249 D.L.R. (4th) 72, 5 W.W.R. 229, 38 Alta. L.R. (4th) 199, 361 A.R. 60, 7 R.F.L. (6th) 373, [2005] A.J. No. 2 (QL), 2005 ABCA 2, setting aside a decision of Verville J.  Appeal allowed.

APPEAL from a judgment of the Alberta Court of Appeal (Fraser C.J.A. and Côté and Paperny JJ.A.) in L.J.W. v. T.A.R. (sub nom. W. (L.J.) v. R. (T.A.)) (2005), 249 D.L.R. (4th) 136, 9 R.F.L. (6th) 232, [2005] A.J. No. 3 (QL), 2005 ABCA 3, setting aside a decision of Perras J., [2003] A.J. No. 1243 (QL), 2003 ABQB 569.  Appeal allowed.

APPEAL from a judgment of the Alberta Court of Appeal (Russell, Hunt and Paperny JJ.A.) in Henry v. Henry (2005), 249 D.L.R. (4th) 141, 38 Alta. L.R. (4th) 1, 357 A.R. 388, 7 R.F.L. (6th) 275, [2005] A.J. No. 4 (QL), 2005 ABCA 5, affirming a decision of Rowbotham J. (2003), 20 Alta. L.R. (4th) 300, 344 A.R. 377, 43 R.F.L. (5th) 357, [2003] A.J. No. 1056 (QL), 2003 ABQB 717.  Appeal dismissed.

APPEAL from a judgment of the Alberta Court of Appeal (Côté J.A. and Hembroff and Hughes JJ. (ad hoc)) in Hiemstra v. Hiemstra (2005), 363 A.R. 281, 13 R.F.L. (6th) 166, [2005] A.J. No. 27 (QL), 2005 ABCA 16, affirming a decision of Belzil J.  Appeal dismissed.

D. Smith and Susan E. Milne, for the appellants.

Carole Curtis, Valda Blenman and Victoria Starr, for the respondents S.R.G. and L.J.W.

Daniel Colborne and Roy W. Dawson, for the respondent Celeste Rosanne Henry.

Gregory D. Turner, for the respondent Geraldine Hiemstra.

The judgment of McLachlin C.J., and Bastarache, LeBel and Deschamps JJ. was delivered by

Bastarache J. —

1.  Introduction

1                    The present appeals involve the parental obligation to support one’s children, and the question of whether this obligation compels parents to make child support payments for periods of time when the responsibility to do so was never identified, much less enforced.  This question will arise when the parent receiving child support (the “recipient parent”) determines that (s)he should have been paid greater amounts than (s)he actually received, despite the fact that no court order or separation agreement provided for these higher payments.  These appeals do not concern the non-payment of arrears; they concern the enforceability and quantification of support that was neither paid nor claimed when it was supposedly due.

2                    The awards contemplated in the present appeals are often termed “retroactive awards” because they involve enforcing past obligations, not ensuring prospective support.  Though misleading in the technical sense, I will adopt this terminology in these reasons because it helps identify the tension that underlies such awards.  Still, I must observe that these “retroactive” awards are not truly retroactive.  They do not hold parents to a legal standard that did not exist at the relevant time:  see MacMinn v. MacMinn (1995), 174 A.R. 261 (C.A.).  But they are “retroactive” in the sense that they are not being made on a go-forward basis:  the parents who owe support (the “payor parents”) are being ordered to pay what, in hindsight, should have been paid before:  see S. (L.) v. P. (E.) (1999), 67 B.C.L.R. (3d) 254, 1999 BCCA 393, at paras. 55-57.  Unlike prospective child support awards, then, retroactive awards implicate the delicate balance between certainty and flexibility in this area of the law.

3                    The four appeals before this Court raise a broad cross-section of circumstances.  Two appeals deal with retroactive awards claimed under the federal government’s jurisdiction over divorce, while two relate to Alberta’s provincial regime under the now-repealed Parentage and Maintenance Act, R.S.A. 2000, c. P-1.  Two of them involve claims for retroactive awards where no support payments had ever been paid by the other parent, while the other two ask for original awards to be increased.  As I will explain, differences like these will have important implications for how cases should be treated and, ultimately, decided.

4                    At the same time, however, the similarities between the four appeals are unmistakable.  Each case involves a recipient parent who failed to apply to a court for an increase in child support payments in a timely manner.  Most unfortunate, each case involves children who lived prolonged periods without the support they were due.  Whatever the outcome of these individual cases, the ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it.  Any incentives for payor parents to be deficient in meeting their obligations should be eliminated.

5                    Against this backdrop, it becomes clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances.  A modern approach compels consideration of all relevant factors in order to determine whether a retroactive award is appropriate in the circumstances.  Thus, while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases either.  Unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect.  Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility.

6                    Given the different factual circumstances presented by the appeals before this Court, and the contextual approach endorsed by these reasons, it should not be surprising that the results of all four appeals are not identical.  Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands.  It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated.

2.  Facts and Judicial History

2.1  D.B.S. v. S.R.G.

7                    D.B.S. (the father) and S.R.G. (the mother) had three children during the course of their ten-year common law relationship.  The two parents separated in 1998; an ex parte order under the Parentage and Maintenance Act provided the father with sole interim custody.  The parties then entered into a separation and property contract, which was confirmed by a consent order on March 1, 1999.  The mother has stated that she had no input into the contract and she did not have counsel negotiate its content; however, she was represented at the time.  In fact, she signed the contract against the advice of counsel.

8                    The agreement provided for joint custody, with the father having primary, day-to-day residence.  However, the mother did not need to pay child support under the agreement; her income in 1999 was $6,272.  Later, the parents would enter into a shared custody relationship.  Custody issues would arise again in November 2002, when the eldest child ran away from home.

9                    The present dispute began when the mother sought joint custody with primary residence of all three children and specified access to the father.  Before the commencement of court proceedings in April 2003, the parents participated in settlement and mediation sessions.  Before the chambers judge, the mother also requested an award of retroactive support for 36 months, going back as far as the father’s recent financial disclosure would allow.  During the period in question, the income of the father was substantially higher than that of the mother.  However, the mother had apparently been unaware she could have sought support during the years of shared custody.

10               Verville J., of the Court of Queen’s Bench of Alberta, gave oral reasons for his decision.  Noting that he believed both D.B.S. and S.R.G. – and their present partners – to be suitable parents, he concluded that the mother should have custody of the eldest child after considering the conflict between the latter and the father’s partner.  Generous access for the father was ordered, and shared custody was ordered to continue with respect to the other two children.  The father was ordered to pay prospective child support.

11               Verville J. also considered the issue of retroactive support.  Referring to the jurisprudence, he seemed to recognize that courts have a discretion, in appropriate circumstances, to order such support.  However, he chose not to exercise that discretion.  He noted that the present incomes of the respective family units were approximately the same and that, while there was no clear evidence as to what the parents had paid in past support, the father “clearly made a contribution”.  He also mentioned that the father allowed the mother shared custody after the consent order providing him with primary residence.  Most important, he declared, “I am not satisfied it would benefit the children” to make such an award.  He therefore concluded that it would be “inappropriate and inequitable” to award retroactive child support.

12               The Alberta Court of Appeal used this case as its lead in the trilogy of D.B.S., T.A.R., and Henry.  (The Hiemstra decision was released separately.)  The unanimous decision, written by Paperny J.A., provides a thorough examination of the issue of retroactive child support ((2005), 361 A.R. 60, 2005 ABCA 2).

13               Tracing the historical foundations of child support in Canada, Paperny J.A. observed that parents have a mutual obligation to support their children, and this obligation translates into the legal basis for child support.  She also noted that child support is the right of the child, that courts are always free to intervene to determine the proper level of support, and that incidental benefits to the custodial parent cannot diminish the quantum of child support due.  Paperny J.A. emphasized that these conclusions apply with equal force to original and variation applications.

14               In her view, the obligation to support a child exists independent of any court action taken.  Paperny J.A. wrote that this idea was accepted even before the advent of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”).  Yet, she also recognized that the Guidelines did alter the child support landscape:  most notably, focus was placed on the means of the payor parent instead of the need of the recipient.

15               Holding that courts have a discretion, both under the Parentage and Maintenance Act and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), to make retroactive child support awards, Paperny J.A. concentrated on the factors a court should consider in exercising its discretion.  She summarized her conclusions in eight points:

1.         A child is entitled to child support. Need is presumed.

2.         The Guidelines presume an ability to pay on the part of the payor in accordance with his or her income as established in accordance with s. 16 of the Guidelines.

3.         Blameworthy conduct on the part of the payor is not required.

4.         The payee does not need to demonstrate an encroachment on his or her capital.

5.         Notice of an intention to pursue child support is not a prerequisite to a retroactive award.

6.         Whether there is an unreasonable burden placed on the payor should not be assumed, but must be established; it must be incapable of alleviation by creative payment options. Further, the reason for or the cause of the inability to pay must be considered and any burden must be balanced against the corresponding deprivation to the payee and the child.

7.         A lump sum payment is not precluded merely because it involves a transfer of capital.

8.         The date of the increased income as defined by the Guidelines is the presumptive date for the commencement of a retroactive award unless the payor has satisfied the additional financial obligation in some other manner, has taken all reasonable steps to fulfill the obligation, has a previous arrangement for child support that contemplates the provisions of the Guidelines, or the payee fails to act diligently without reasonable excuse. [para. 153]

16               In reaching her conclusions, Paperny J.A. deliberately chose not to attach importance to the fact that the present appeal fell under the jurisdiction of provincial family law, and not federal divorce law.  She noted that, in Alberta, courts have applied the Guidelines in circumstances of unmarried as well as married parents.  Paperny J.A. also held that the same law should apply to interim, trial and variation orders.  Accordingly, the principles elaborated in this case were applied without distinction to all the appeals heard by her court.

17               With respect to D.B.S., Paperny J.A. allowed the appeal.  Specifically, she felt that Verville J. failed to consider when the obligation to pay support arose, whether the father satisfied his obligation in another manner, whether the previous arrangement between the parents contemplated the Guidelines, whether the mother was aware of the father’s increased income and, on the whole, whether there were indeed circumstances that militated against a retroactive award.  Paperny J.A. also stated that Verville J. should have considered whether the father had established that a retroactive award would cause hardship, whether such hardship could have been alleviated by a creative award and, if not, on whom the burden of the unfulfilled obligation should fall.  Finally, she remarked that even if the award might not have helped the children, the potential it had to compensate the mother for her past sacrifices should have been considered.

18               Paperny J.A. returned the matter to a chambers judge to decide the case on the basis of her reasons and the additional considerations listed in s. 9 of the Guidelines, which apply to shared custody situations.

2.2  T.A.R. v. L.J.W.

19               As in D.B.S., the two parents in this appeal also had three children during the course of a common law relationship.  Following their parents’ separation in 1991, the children lived with the mother, L.J.W.  Some months later, the father started paying support at the rate of $50 per month per child pursuant to a maintenance agreement.  The formal child custody order, which came in the summer of 1991, granted custody to the mother but did not mention child support.

20               Through the years, both parents began new relationships; the mother is now married and the father resides in a common law relationship.  Since their separation, the mother has asked the father for more financial help, but he has refused on the basis that he could not afford to pay more.  Nonetheless, an April 22, 2003 consent order increased the father’s child support obligation to $300 per month.  Some months later, on June 11, 2003, in a part of the order that is not being appealed, Perras J. awarded child support in the amount of $465 per month ([2003] A.J. No. 1243 (QL), 2003 ABQB 569).

21               In this appeal, the mother seeks retroactive child support for the difference between the amount she was paid in child support and the Guidelines amount she claims was due.  She has applied for this award to be retroactive to January 1, 1999.

22               Though he increased the amount of child support on a go-forward basis, Perras J. refused to grant retroactive child support.  He recognized that such an award may be ordered in appropriate circumstances, but he decided that this was not an appropriate case.  In coming to this conclusion, Perras J. considered that the father earns a “meagre” gross income, that the father had honoured the obligation agreed upon by both parents, that the father advanced a claim of hardship (though he was unsuccessful, based on the criteria listed in the Guidelines), that the father incurs substantial expense already in exercising his access rights, and, finally, that the father has not tried to avoid his obligation and has not failed to disclose a greatly increased income.

23               On appeal, Paperny J.A. reviewed the Alberta Court of Appeal’s decision in D.B.S.  Applying those reasons to this appeal, she held, for a unanimous court, that the matter should be returned to a chambers judge ((2005), 249 D.L.R. (4th) 136, 2005 ABCA 3).  Paperny J.A. emphasized that, while Perras J. concluded a retroactive award would place an unfair burden on the father, he did not consider whether that burden could have been alleviated by a creative award and, if not, on whom the burden of the unfulfilled obligation should fall.

2.3  Henry v. Henry