Child maintenance is the right of a child and not of the child’s parent and it is presumed that the payor parent will pay child maintenance from the date of separation onward based on their income.

 

If the payor parent’s income changes child maintenance should also change based on the amount set out in the Federal Child Support Guidelines. This applies regardless of whether or not there is an existing court order or a written agreement.

 

If a payor parent neglects to disclose a change in their income the issue arises of how far back a court will go to vary the existing maintenance payment.

 

The factors a court will consider was set out by the Supreme Court of Canada in (D.B.) v. G. (S.R.), 2006 SCC 37:

 

  1. The circumstances surrounding the delay or why there was a delay;
  2. The payor’s conduct and did the payor knowingly avoid paying increased child maintenance;
  3. The circumstances of the child and the child’s standard of living;
  4. Any hardship to the payor parent that would be caused by ordering that parent to pay retroactive child maintenance;
  5. Did the recipient parent ask for increased child maintenance. The court will typically not make an order retroactive to a date that is more than three years before the date that notice was given.

 

Deborah A. Todd
Deborah A. Todd