Our BC Court of Appeal recently reiterated the test for
retroactive awards of British Columbia child support in Hinds v. Hinds
[2008] BCJ No. 2540 where the Court reviewed the law.
Shortly after the trial in this case, the Supreme Court of
Canada addressed the issue of retroactive support in D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry, and Hiemstra v. Hiemstra. In D.B.S.,
the Court reiterated the principle that parents have a joint obligation to
support their children commensurate to their income. Where a non-custodial parent has failed to
meet that legal obligation, Bastarche J., for the majority, identified the
following factors to consider in determining whether a retroactive award would
be appropriate in the circumstances:
i)
The reasons why the recipient did not apply for support
earlier;
ii)
Any blameworthy conduct by the payor that privileges
the payor’s own interest over his or her children’s right to an appropriate
amount of support;
iii)
The circumstances of the child both at the time the
support should have been paid and at the time the application for retroactive
support is made; and
iv)
Any hardship that might be occasioned by a retroactive
award.
40 In
determining the amount of a retroactive award of child support, the court must
decide the date which the retroactive award should commence, and the amount of
the retroactive support that would adequately quantify the payor's deficient
obligation.
41 In
regard to the former, the court in D.B.S. suggested that the date of
"effective notice" of a request for appropriate child support would
be the starting point in determining the date to which the award should be made
retroactive. In the absence of "blameworthy conduct", the court
indicated that date should be, for practical and hardship reasons, no more than
three years in the past. This retroactive fixed date of three years past is to
be weighed against any blameworthy conduct by the payor that belies his or her
belief that the child's needs had been met, regardless of their failure to
provide appropriate support.
42 The
second factor in determining the quantum of a retroactive award is to ensure
that the amount awarded is consistent with the applicable statutory scheme. In
this case, that scheme is based on the Guidelines, which permits the
consideration of any undue hardship that a retroactive award might have on a
payor.
43 In
regard to the date of "effective notice," the appellant first asked
the respondent in 2001 to make financial disclosure and to pay interim child
support pursuant to the divorce action. In response, he filed a Property and
Financial Statement on December 6, 2001, deposing that his 2001 income was
$8,385.57. In fact, his 2001 reported income was $18,595. The respondent also
failed to disclose his half-interest in real property in Vernon as an "asset" in Part 3 of his 2001 Property and
Financial Statement.
44 In
November 2002, the appellant issued a second demand for an up-dated Property
and Financial Statement from the respondent. The respondent did not respond to
that demand. Again, in March 2003 the appellant made a third demand for an
up-dated Property and Financial Statement, which included an application that
the respondent be fined for non-compliance with her earlier demand.
45 During
the periods of these repeated demand for financial disclosure (between 2001 and
2003), the respondent continued to pay the monthly $181 pursuant to the FRA
Order. Given the amount of his reported income in 2001 and 2002, the Guidelines
support would have been comparable to the amount he was actually paying.
However, his financial circumstances materially improved in 2003, 2004 and
2005, when his income increased to $37,609.87, $46,501.14, and $60,999.53,
respectively. During this period, the child was entitled to share in the
benefit of his improved financial circumstances; yet the respondent failed to
increase his child support payments until February 2005. This behaviour, in my
view, amounts to "blameworthy conduct" that warrants an order for
retroactive child support.
46 In
the result, I would vary the order to include an order for retroactive child
support. The date to which the retroactive order would commence should coincide
with the material improvement in the respondent's financial circumstances in
2003; the period of retroactivity would continue until 2005, when he
voluntarily increased the child support. It should be noted that this period of
retroactivity is within the three-year limit suggested in D.B.S., recognizing
the concerns relating to practicality and hardship that retroactive awards can
create.
49 I
appreciate that the respondent may experience some hardship in having to pay
this amount. However, ignoring requests for financial disclosure and failing to
increase child support upon a material increase in Guidelines income,
especially following a request for financial disclosure, should not be rewarded
by permitting the payor parent to avoid their legal obligation to contribute to
the support their child in a manner commensurate with their income.
1.877.602.9900
