Parents have an obligation to support their children. The amount of child maintenance is based on their annual income and on the amount set out in the Federal Child Support Guidelines.
When a parent’s income changes, the parent has an obligation to advise the other party of the change and to change the amount of child maintenance that they are paying accordingly.
When a parent neglects to disclose a change to their income, the other parent can sue them for retroactive child maintenance.
The leading case is a decision of the Supreme Court of Canada D.B.S. v. SRG (2006) SCC 37. In this case the court sets out a series of factors which should be considered when determining if a retroactive award is appropriate:
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 the retroactive award.
Past cases have established that asking the payor to pay three years of retroactive support is usually as far back as a court will go.
Recently in the BC Supreme Court in a case called A.I.D. v. C.D. Mr. Justice Young held that the circumstances warranted an award in the amount of $522,408.24 for fifteen years of retroactive child maintenance. This is a landmark case and indicates that the courts are now prepared to go back much more than three years when considering retroactive child maintenance.
Many parents exchange their tax returns in May of each year and adjust the amount of child maintenance accordingly. Given the A.I.D. v. C.D. decision this is a practice which should be followed.
Deborah A. Todd