British Columbia Family Law Blog

The principles on Canadian and British Columbia retroactive child support have been recently established by the Supreme Court of Canada in the 2006 case of D.B.S. v. S.R.G. et al. which states that the Court should take a holistic view of the matter and decide each case on the basis of particular facts as follows:

            1.         The payor parent’s interest in certainty must be balanced with the need for fairness to the child and for flexibility.

            2.         Consideration shall be given to the recipient parent’s reason for delay in seeking child support.

            3.         The Courts look at the conduct of the payor parent.

            4.         Past and present circumstances of the child, including the child’s needs at the time the support should have been paid.

            5.         Whether a retroactive aware might entail hardship. 

Most importantly, the date of the retroactive aware should be 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 change materially, will be the presumptive start date of the award.