Provincial Court Awards Retroactive Child Support  Dating Back 10 Years feature image

Provincial Court Awards Retroactive Child Support Dating Back 10 Years

When parents decide to get separated or divorced, one parent is often responsible for paying child support to the other. Child support is usually awarded to the parent who has the most parenting time with the child and is based on the amount of income each parent earns in a year. When a parent fails to make child support payments, the amount they owe continues to increase, along with interest and penalties. Unfortunately for the parent who has gone without child support, retroactive orders for payment typically only go as far back as three years. In a recent case, however, HMC Lawyers’ own Casey McQueen represented a parent in a child support case who was awarded 10 years of retroactive support by the court.

Mother seeks child support dating back to 2011

The mother and father involved in the matter met in 2007. Their friendship eventually grew into a romantic relationship, which ended in 2010 when the mother discovered she was pregnant. The court learned the mother and father discussed child support during the pregnancy, but communications between the parties ended in 2012 when the father asked for paternity testing.

The parents ceased communicating for six years. In 2018, the mother learned about the child support she was entitled to and began to seek compensation from the father. They also discussed the paternity test and financial disclosure at that time.

The core principles of child support claims

The Provincial Court of Alberta noted there have been a number of decisions related to child support, with the most notable being the Supreme Court of Canada’s 2006 decision in D.B.S. v. S.R.G. In summarizing the three core principles about child support claims, the Court in D.B.S. stated:

“First, that child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship.

Number two, it is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the Court may grant relief to correct the failure.

And the last core principle I am going to make reference to is that the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”

Court considered both mother’s delay in requesting child support and father’s conduct

In applying these factors to the case at hand, the Provincial Court of Alberta considered both the mother’s reasons for delaying an application for child support and the father’s conduct. The father said that communication stopped in 2012 when he asked for a paternity test and that he should not shoulder the blame for the mother’s inaction on either that request or an application for support. The father told the court the mother had been mistaken in her assumption that collecting child support would mean giving the father some decision-making responsibilities for the child.

The court noted the costs of litigating the issue of child support were likely prohibitive for the mother, and there was a lack of information available regarding the father’s finances. The court also found the mother was likely worried the father would respond to an application for child support by asking for parenting time with the child. The mother told the court that she was concerned about the home environment of the father and the safety of the child in his home.

The court then turned to the father’s conduct in the years leading up to and during the gap in communication. The court said he “engaged in and continues to engage in blameworthy conduct, and this included failing to provide financial disclosure, (and) failing to comply with court orders.” The court found the father had failed to cooperate at nearly every stage of the litigation, including the mother’s requests for financial disclosure.

How does the father’s conduct impact retroactive child support?

The court found that as the father’s conduct constituted “abhorrent behaviour”, it would not be necessary to limit retroactive child support to three years from the date of the effective notice. The father may have made the last request for a paternity test in 2012, but the court noted he failed to follow up on that request, stating:

“If he was serious about his responsibility here and his obligation to this child, there was nothing stopping him in those six years to move forward with the paternity test, and particularly a paternity test that a court would consider to be a valid test.”

The court ultimately found the mother’s request for 10 years of retroactive child support was reasonable given the circumstances and the father’s conduct and granted support back to the date of the child’s birth in 2011. We will continue to provide updates should this decision be appealed.

Contact HMC Lawyers in Calgary for legal advice regarding child support

A separation or a divorce can have a significant impact on a person’s financial stability, particularly if one party fails to meet their child or spousal support obligations. At HMC Lawyers, our family law team can answer your questions about spousal or child support issues. Call us at 1-800-480-3534 or reach us online for a consultation.

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