Retroactive Child Support
Child support is the means through which the law ensures that individuals with parental responsibilities provide financial assistance to their children upon separation from their children’s other parent(s), or upon their children’s birth if the parents never cohabitated. Both the British Columbia Family Law Act and its predecessor, the Family Relations Act, R.S.B.C. 1996, c. 128, embody the nature of child support, animated by the best interests of the child. 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.
The purpose and promise of child support are to protect the financial entitlements due to children by their parents. The jurisprudence has not consistently fulfilled that promise when it comes to historical child support, which is the term used to describe when retroactive child support is sought after the child no longer qualifies as a beneficiary under the applicable legislation. A growing body of jurisprudence and social science findings demonstrating that, sometimes, parents delay their application for child support to protect their children from harm or because making an application is impracticable or inaccessible in their circumstances.
While a “retroactive” child support award does not impose a new obligation but simply serves to enforce a past unfulfilled obligation, the mechanism for enforcing that obligation must be found in the governing legislative scheme. A court can enforce an unfulfilled child support obligation only where the governing legislation provides a mechanism for enforcement, and only in accordance with that mechanism. For the purposes of determining who is eligible to receive child support, the term “child” in different ways. While “child” is defined as meaning “a person who is under 19 years of age”, that general definition in relation to a parent or guardian’s duty to provide child support.
Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct”. And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support, the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation.
Failure to disclose material information is the cancer of family law litigation (Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, 2006 SCC 25,  1 S.C.R. 920, at para. 34). And yet, payor parents are typically well aware of their obligation as a parent to support their children, and are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations (Brandsema, at paras. 47‑49). The payor parent’s obligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement respecting child support. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payor parent’s non‑disclosure.
Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation which does not evaporate or fade into history upon a child’s 18th or 19th birthday or their graduation from university. Child support issues rarely make their way to this Court due to the high cost of appeals and the comparatively low value of awards. The evasiveness of review attaching to historical child support issues justifies that we begin to discuss and reconcile the deeply divided and confused jurisprudence which prevents the hearing of historical child support claims across the common law jurisdictions.
Arriving at the modern understanding that child support is a right of the child enforceable by court order has taken a great deal of time and is the result of hundreds of years of progress and numerous shifts in thinking about children, human relationships, societal roles, and legal responsibilities. The status of children has changed dramatically from the times when children were viewed as property and the payment of monies for their upkeep was grounded more in grace and generosity than legal duty. Today, children are viewed as individuals who, as full rights bearers and members of a group made vulnerable by dependency, age, and need, merit society’s full protection. This includes a call on the real resources of their parents, translated into a right to child support based on their parents’ actual incomes. Further, the obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it, because child support is a continued obligation owed independently of any statute or court order. While a child support debt may be forgiven by a court, it remains true that such a debt is owed from the moment it ought to have accrued — no matter the length of the delay.
Regarding the date to which a child support award should be retroactive, the date of retroactivity should perhaps correspond to the date when the support ought to have been paid.
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Categories: Child Protection Laws