In a recent Court of Queen’s Bench decision, Justice M. Lema addressed a number of different issues relating to cross applications in respect of retroactively varying child support and pursuing arrears of child support from over a decade ago.

In H.G.S. v. J.R.M., [2018] A.J. No. 1273, Justice Lema was faced with an application from a father who sought to retroactively vary his child support back to 2006, along with a cancellation of arrears that he had incurred, and a cross-application from a mother seeking payment for unpaid section 7 expenses, also dating back to 2006.  Making matters even more complicated was the fact that the father gave up his role as the parent of the child in 2013, when the mother’s new partner adopted the child – yet the biological father continued to pay support for that period of time and his arrears owing to Maintenance Enforcement continued to grow.

In any matter dealing with retroactive adjustments to child support, the primary case for consideration is the Supreme Court of Canada case, D.B.S. v. S.R.G., 2006 SCC 37DBS is widely considered and cited by the Courts in retroactive consideration of child support because, among its other findings, it sets out a guideline for the Courts to consider when determining how far back any application for a retroactive variation of child support should reach.  DBS spoke at length about the importance of this issue and how the Courts should address it; the primary importance of this consideration being that in any retroactive variation of child support, the Court is revising child support payable in the past, which impacts the present and future finances of the payor.  For example, if an application is brought stating that an order for child support is incorrect, and that as a result, the payor parent has underpaid child support for 10 years, were the Court to go back and correct this for the prior ten years, a payor could be crippled financially, even though they were abiding by a child support order for those ten years.

In consideration of this, DBS held that payor parents need certainty, they need to be aware that what they are paying for child support will not be retroactively varied in the future.  In this regard, DBS set out that it would be most appropriate if a Court should not vary child support retroactively beyond the date of “Effective Notice”, being the date that the recipient parent informed the payor parent that child support should be varied.  It is at that date that a payor parent can no longer say that they believed they were paying the correct amount of support, as they have been put on notice by the other party that it may not necessarily be the correct amount.  DBS further remarked that notwithstanding the date of “Effective Notice” a recipient parent cannot unnecessarily delay in bringing an application, and to counter such delay, any retroactive variation should not go back farther than three years from the date of “Formal Notice”, being the date that the recipient parent brought the formal application for variation.  This would mean that if a recipient parent gave Effective Notice of their intention to seek a variation of child support in 2010, but failed to file an application for such variation until 2018 (the date of Formal Notice), any retroactive variation ordered should not go back in time further than 2015, notwithstanding that Effective Notice was given in 2010.

In DBS, however, the decision was in respect of how to address variation sought by the recipient parent, quite unlike the case of HGS where the biological father wished to retroactively reduce the child support he was obligated to pay.

Notwithstanding this difference, Justice Lema engaged in an analysis of the prior case law in this area and positively held that the reasoning and limits on retroactivity of support applied just as equally to payors of child support bringing applications to reduce their historical child support.  In this particular case, the father had given the mother “Effective Notice” of his intention to retroactively vary child support in 2012; however, the father did not actually bring an application to vary the support until June of 2018.  Based on the DBS guidelines, and notwithstanding that the father had given Effective Notice in 2012, the Court in this case held that the Father had delayed too long and his application should not go back farther than three years from the date of his Formal Notice – the date of his application.  This would have brought the father’s variation application back to June of 2015.  However, as the father ceased to be a legal parent of the child in 2013 when the adoption proceeded, the father was not obligated to pay child support after 2013 in any event.

As a result, the Court held that, notwithstanding that the father’s income was much lower than what he had been originally ordered to pay child support commensurate with, he was nonetheless precluded from varying his child support predating 2013 – even though it was incorrectly calculated.

Similarly, as the mother did not bring her application for retroactive support for section 7 expenses until 2018, the mother was precluded from any award varying the section 7 expenses prior to 2013.

This case is of importance for not just recipients of child support who seek to vary their child support retroactively, but also for payors of child support as it confirms that the timelines in DBS apply to payors as well.  As a result, it is important for payor’s of child support to be timely in giving notice and bringing applications to vary their child support if they believe that they are overpaying.  As this case shows, waiting too long can result in being stuck with arrears for incorrectly calculated support, or having overpaid historical child support, with no chance of variation.

If you believe that you have either overpaid child support, or are not receiving the appropriate amount of child support, the lawyers at Mincher Koeman have years of experience in dealing with matters just like yours.  Give us a call at (403) 910-3000, or email us at reception@mincherkoeman.com.



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