Madam Justice Young helpfully summarized the law on the retroactive variation of child support in the recent Supreme Court Case A.J.D. v. C.D., 2017 BCSC 1559. A.J.D., In this case, the applicant sought a variation of child support stretching back 12 years on the basis that the respondent payor spouse failed to disclose material changes in his income.
Madam Justice Young cited the leading case with respect to issues of retroactive child support, the Supreme Court of Canada decision in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII) and applied the non-exhaustive factors which should be taken into consideration in determining whether a retroactive award is appropriate, including:
1. Whether there was a reasonable excuse for the recipient parent failing to make an earlier request for support, or variation;
2. The conduct of the payor parent;
3. The circumstances of the children; and
4. Any hardship occasioned by a retroactive award.
The court found that the recipient spouse was unaware that the payor spouse was obliged to provide continuous financial disclosure and that the failure of the payor spouse to pay guideline support had caused his children hardship. She accordingly assessed child support arrears from 2002 to 2017 in the amount of $522,408.24 based on the payor spouse’s tax assessed income.
This recent case, apart from being instructive on the importance of showing up to court, highlights the need to timely financial disclosure so as to avoid large retroactive awards for child support.
Prepared by Nicholas Maviglia